Is reform of harassment law on the way?

Back in 2019 the government published a consultation on sexual harassment in the workplace, largely in response to the #metoo movement and widespread criticism of the current level of protection for employees and workers in the workplace.  Now, some 2 years later the government has finally published its response to this consultation.  

This podcast looks at what changes may be made to legislation in the coming months and years - specifically the positive duty that will be placed on employers to take steps to prevent harassment.

We still await the outcome of another consultation about the use of confidentiality clauses in settlement agreement in relation to sexual harassment.

This episode is not intended to provide legal advice. Rather, it is intended to provide general guidance on the topic discussed.

If you would like us to advise you on a particular issue then please get in touch with us at matthew.huggett@carbonlawpartners.com

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In addition to legal advice, Matt also offers HR and Employment Law Training through his partner business: Brightstar HR. Please have a look at all the training offered here: www.brightstarhr.co.uk

Transcript

Welcome back.

I appreciate that this is our first podcast in a little while.  But one thing I will say is that it hasn’t taken us as long as it has taken the government to respond to its own consultation on sexual harassment.

First, let me set the scene for you.  The year is 2017 and the allegations of widespread sexual abuse by Harvey Weinstein become public which then throughout 2018 results in widespread media coverage of the #metoo movement, which actually started in 2006.  

In the UK we then had our own high profile individuals who were also caught up in allegations including Sir Phillip Green in October 2018.  

One of the issues that came out of the Phillip Green allegations (and others) were that confidentiality clauses, of course along with money, were being used in settlement agreements in order to effectively cover up acts of discrimination.  And of course, such agreements and clauses were being used in circumstances where the powerful individuals in firms are able to use the resources of the business to cover up their own behavioural failings.  

 In response to all of this the government published a consultation document in 2019 which proposed a number of steps which could be taken from a legislative perspective to provide greater protection against sexual harassment in the workplace for workers.  This document was in itself a follow up to a response given by the government at the end of 2018 to a report on sexual harassment in the workplace which was published by the Women and Equalities Select Committee.  The consultation ran from July to October 2019.  

The proposals contained in the consultation document were:

·        how to ensure employers take preventative steps on harassment – namely whether it is appropriate to place a specific legal duty on employers to prevent harassment rather than the current law which provides employers with a defence if they have taken all reasonable steps to prevent harassment.  

·        the law surrounding employers protecting their staff from being harassed by clients, customers, or other people from outside their organisation

·        whether interns and volunteers are adequately protected by current laws

·        whether people should be given longer to take a harassment, discrimination or victimisation claim to an employment tribunal

 So, here we are now, nearly two years after the consultation process closed and the government has finally published the outcome.  

First, lets have a look at what the government says about how to ensure employers should take preventative steps to prevent harassment:  

This looks at introducing a specific duty requiring employers to prevent sexual harassment in their workplace.  This would reformulate the law.  As just mentioned, under the current law an employer is only liable if an incident actually occurs and they have failed to take reasonable steps to prevent it from occurring.  

The proposed new law, which has received support from the government in this consultation outcome, shifts the emphasis to taking preventative measures before an event of sexual harassment occurs.  What needs to happen doesn’t really change though, employers’ would still need to take all reasonable steps to prevent harassment from taking place.  The legal change though would be that that an employer could be held to account and be liable for failing to take such steps to prevent harassment even without an incident taking place.  

This would be a significant change in the potential liability for employers as it would require employers to keep all of their preventative measures up to date.  In effect, in my view, it would require all employers to ensure that they have effective policies and company wide training in place at all times meaning that their training activities should be updated on an annual basis in the same way that other regulatory training such as health and safety is regularly updated.  

The government has now stated that it will legislate to require employers to take these proactive preventative steps. And will introduce this new legialtion as soon a parliamentary time allows – so we don’t have a timetable yet I’m afraid.  

Also, what isn’t clear at this stage is how the enforcement of this will work.  Will it be an enforcement action by the Equalities and Human Right Commission only against an employer or will individuals be able to enforce this duty as well.  It would appear that it will be limited to enforcement by the EHRC as this is where the focus of the response by the government is.  This would then include a creation of a new statutory code of practice for employers to comply with and guidance.  It is then considered that this will also result in greater awareness by all workers in organisations if employers are actively promoting a workplace free of harassment and accordingly workers will be better informed about how to complain to their employer or bring legal challenges.  It therefore looks as if the individual enforcement regime is likely to remain the same.  

Another point that is not clear from this consultation as well is whether this will go beyond sexual harassment.  Of course, since the original consultation was published in 2019 we have has significant social issues in respect of racial harassment.  So, will the obligation to prevent sexual harassment be a general and more wide-ranging obligation to prevent harassment that may be connected to any of the protected characteristics or not?  We will need to wait and see but it would be very logical for that to be the approach as otherwise we will have end up having a tiered system of harassment.

Another area that the consultation looked at was third party harassment.  Now, those of you that have been in the business for long enough will remember that when the Equality Act was introduced in 2010, that section 40 of that Act provided that an employer would be liable if one of their workers’ was harassed on three separate occasions by a third part, effective introducing a 3 strikes rule.  This was repealed in 2013 and since then there has been no protection from harassment by third parties unless the employer could have reasonably foreseen that their workers were being placed at risk as was established in the De Vere Hotels case involving the 1970s racist comedian Bernard Manning and hotel workers.  

The government response to the consultation is that some protection from harassment by third parties needs to be reintroduced.  This is not going to be a duty to prevent harassment by third parties in the same way that the general preventative duty that I have just set out looks at.  Rather this will be legal protection that can be enforced when an act of harassment by a third party actually occurs.  The reasonable steps defence will continue to apply and therefore if an employer has taken all reasonable steps to prevent harassment by third parties actually taking place then there will be no liability on the employer.  The worker will of course be able to sue the individual involved as is the case now.  What we are not clear on at this stage is whether the worker – your worker – would also be able to litigate against the employer of the third party.  That would appear to me to a potentially interesting and effective way of addressing third party harassment.  

This part of the consultation also looked at the reasonable steps defence itself and specifically whether the steps that needed to be taken should be explicitly outlined.  However, the government has said that by doing so would remove the flexibility in the steps that need to be taken in different workplace.  However, of greater concern was that by explicitly stating what the steps are would risk creating a tick box approach among employers to the defence and would therefore not address workplace cultures and the specific needs of different workplaces.  

 Another key point addressed by the consultation is the current time limits.  There is of course, as there are for almost all employment tribunal claims, a 3-month time limit for bringing a claim of sexual harassment.  This has caused significant difficulties in many cases.  I have certainly represented clients in cases where they have been subjected to systematic acts of sexual harassment over many months and years.  Employers in these circumstances will then argue that those acts are not connected with one another which can then ultimately render lots of claims out of time.  As we have also seen in the metoo movement itself as well though, the trauma that is frequently experienced by individuals who experience and are subjected to sexual harassment (and other forms of harassment) frequently prevents individuals from bringing claims within the short window of 3 months.  This is particularly true if the employee is pregnant or on maternity leave where unsurprisingly the focus of their attention is elsewhere at that time.   There are also often issues about the time that internal investigations can sometimes take in these sensitive and complex cases which can often result in employee’s waiting for that outcome, which may be more than 3-months from the discriminatory act, before bringing their by now out of time claim.

The majority of respondents to the consultation reported that they considered the 3-month time limit to be too short.  The respondents were split though on whether the new time limit should be 6 months or longer than 6 months.  

The government has concluded and recommended that the time limit should be increased.  It has accepted that it would help individuals be able to have access to justice and bring their legal claims of harassment.  They have also stated that in extending the time limit, it should not just be for harassment claims, but for all equality act based claims including direct, indirect, victimisation and the various strands of disability claims.

The government has not committed to what this new time limit should be but has recommended at this stage that it should be extended to 6months.  

When this may happen is less clear though.  They have stated that they are particularly conscious of the pressure and workload that the tribunal is under at the moment and that the extension of the time limit may result in a greater number of claims and accordingly place even more strain on the service.  I would therefore not anticipate a change in the time limit for at least a further year.

 The final area of the consultation concerns protection in law for volunteers and interns.  

The consultation makes a distinction between pure volunteers and those who work for free to gain experience in a particular industry and are therefore particularly vulnerable in the workplace as they are almost certainly going to be very junior and are reliant on the goodwill of the organisation to provide them with the experience they need in order to gain entry to their chosen profession.  

The government also highlighted that there are other groups who can fall outside the scope of the protection of the Equality Act.  Rather than address this rather broad and significant issue of who should be protected under the Equality Act as part of this consultation regarding harassment they have recommended that this should form part of a wider review of the equality act in the future.  

Employers though should be aware that whilst volunteers and interns may not have protection under the Equality Act they may still be protected by other legislation such as the Protection from Harassment Act 1997, health and safety legislation and the common law duty of care.  

 All in all, this is encouraging movement form the government to finally pull together the outputs of a consultation undertaken some 2 years ago.  To summarise the main recommendations, they are that:

·        there will be a duty placed on employers to take steps to prevent harassment taking place, enforced in all likelihood by the EHRC;

·        harassment by third parties will be reintroduced, albeit in a somewhat revised form from that which we had between 2010 and 2013.  The nature of this proposal is a bit vague at the moment so we can’t assess quite what this means;

·        that time limits in all discrimination cases will increase to 6 months although the timing of this is uncertain given the strain the employment tribunal system is currently experiencing.  

 All of this still requires legislation to be published.  The outcome of this consultation and the government’s response is just the first step and one that has taken them 2 years to get to, this is clearly not something that is going to change overnight.  I would though anticipate that when we get to the next Queen’s speech in May next year.