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Name of responsibility: UK authorities proposes new responsibility for employers to stop sexual harassment


The UK authorities has lately revealed its long-awaited response to its 2019 session on measures to fight sexual harassment within the office and strengthen current authorized protections. 

Most importantly, the federal government has dedicated to introducing a brand new proactive responsibility on employers to stop sexual harassment within the office and to reintroduce protections from third-party harassment. It’s also prone to lengthen the deadlines for bringing claims underneath the Equality Act 2010 (EqA), however that is nonetheless being thought of.  

The response could be very gentle on element about how these legislative modifications shall be applied. Set out beneath are the headlines of the federal government’s response and what lies forward for employers “as quickly as parliamentary time permits”.  

Proactive responsibility to stop sexual harassment 

The federal government intends to introduce laws which requires employers to take optimistic, proactive steps to stop sexual harassment. Presently, employers are underneath no proactive responsibility to stop sexual harassment within the office. Nonetheless, if an incident has taken place and a person makes a declare, an employer will doubtlessly be liable except it could actually present it took “all cheap steps” to stop the sexual harassment.   

The principle findings of the session have been that many respondents have been supportive of the brand new responsibility to immediate employers to take optimistic steps to stop harassment. The #MeToo motion made it clear that current legal guidelines with after-the-event legal responsibility weren’t sufficient and that extra is required to drive lasting cultural change. 

The federal government has stated it anticipates that the brand new responsibility would require employers to take all cheap steps to stop harassment. Beneath this reformulation of current legal guidelines, an employer would nonetheless be required to take cheap steps (as they’re now, assuming they need to have the ability to defend any claims) however might doubtlessly be accountable for failing to take preventative motion with out the necessity for an incident to have occurred.  

The response refers back to the Equality and Human Rights Fee’s (EHRC) current energy to enter into legally binding agreements with employers who’re discovered to be accountable for breaches of the EqA and that there could also be scope for “additional EHRC motion on this space”. It could possibly be attainable that employers discover themselves the topic of enforcement motion by the EHRC primarily based on lack of insurance policies, coaching or different steps to stop sexual harassment, even when no incident has occurred. It’s nevertheless anticipated that an incident would nonetheless have to have taken place earlier than a person might make a declare.  

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The scope of this new responsibility shall be clarified by a statutory code of observe, developed by the EHRC. Many respondents advocated that the steps themselves ought to be explicitly outlined, however the authorities has stated this might take away the flexibleness to take a proportionate method. What taking all cheap steps will contain will fluctuate in keeping with an employer’s measurement and sources. The federal government needs to encourage employers to place in place practices and insurance policies which reply to the wants of their particular organisation, reasonably than making a checkbox train.  

The response doesn’t state whether or not the preventative responsibility will apply to all types of harassment underneath the EqA, or whether or not protections towards sexual harassment shall be elevated over and above different types of harassment. The authentic session paper referred to discussing choices that may apply equally to all types of harassment. Additional readability on this level is awaited.  

Authorized protections towards third-party harassment 

The federal government additionally intends to reintroduce protections towards third-party harassment within the office. Traditionally, employers could possibly be accountable for harassment of their staff by third events within the office (for instance, a buyer or provider) underneath the “three strikes rule”, if the worker had been harassed on two prior events. This was repealed in 2013. It stays unclear in what kind this safety shall be reintroduced, however the authorities has confirmed that alongside this employer legal responsibility, it is going to introduce the defence of getting taken all cheap steps in response to a declare. There isn’t any present indication it is going to be a proactive responsibility, as above.    

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Once more, the response is obscure on whether or not the brand new responsibility will apply to all types of harassment, or simply to sexual harassment.  

Extending time restrict to carry claims 

The federal government has stated it is going to “carefully” take a look at extending the time restrict to carry claims underneath the EqA from three months to 6 months. That is stated to be in relation to all claims underneath the EqA, not simply sexual harassment.   

The final response to the session was in favour of accelerating the time restrict, with many respondents advocating for 12 months. The federal government acknowledged that if an extension was to be launched, a time restrict of six months could be extra applicable than 12. That is in recognition of the necessity to strike a steadiness of making certain entry to justice whereas minimising the potential damaging impression on employers. Any extension will result in a rise in employer legal responsibility and in addition begin to restrict the reliability with which these concerned can recall occasions, and the supply of paperwork and witnesses.  

It’s not clear how this might intersect with different employment claims topic to a three-month time restrict. For instance, how simply might an worker claiming unfair dismissal amend their declare to tack on claims of discrimination? This is able to place a further burden on employers to file an amended defence. 

Any extension in time restrict can also be prone to see a rise within the variety of claims filed. The federal government is acutely aware of current tribunal delays exacerbated by the COVID-19 pandemic and the necessity to first return the tribunal to earlier ranges of service earlier than “further loading” is added. 

Volunteers and interns 

The session additionally thought of whether or not interns have been adequately protected underneath the EqA and whether or not the EqA’s protections ought to be prolonged to volunteers. The federal government has dominated out modifications on this regard on the idea that:  

  • Interns are already sufficiently protected by the EqA as they’re prone to be thought of “staff”.  
  • Extending protections to volunteers might create a disproportionate degree of legal responsibility and issue for organisations which outweighs the good thing about the volunteering companies supplied. As an example, people serving to out at one-off college occasions or charities.   
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Subsequent steps 

The above anticipated modifications want a substantial amount of fleshing out. Crucially, it stays to be seen whether or not these new protections shall be prolonged to different types of harassment underneath the EqA.    

No timelines have been indicated and it’s prone to be a while earlier than any modifications come into impact. We’re nonetheless ready on the laws promised in 2019 in relation to the use of non-disclosure agreements (NDAs). That is one other difficulty which the #MeToo motion shone a highlight on.  

Within the meantime, employers can begin to refocus on the difficulty of sexual harassment as staff return to the office. Harassment can happen in lots of kinds and employers ought to make sure that coaching and insurance policies are updated and think about how harassment can happen in a distant workforce.   

Employers may evaluation the EHRC’s technical steerage (revealed in 2020), on which the code is prone to be primarily based. The steerage units out the EHRC’s suggestions on steps employers ought to think about taking to stop harassment. It requires employers to be extra interested in what’s going on within the office and really helpful actions resembling conducting threat assessments, finishing up common suggestions surveys and having nominated “guardians” who’re skilled to assist a complainant by way of the method of creating a criticism. When coming into into third-party provider contracts, employers might think about together with contractual clauses concerning compliance with anti-harassment insurance policies or requiring third events to have given coaching to related employees.   

By Marie Hoolihan, affiliate at King & Spalding