David Gibson provides some insight into a proposed reform of sexual harassment in the workplace legislation.
The Equalities Office has now published its Consultation Response on sexual harassment in the workplace, which indicates a clear intention to make some changes to the law in the near future.
Overview of current legislation
Under the Equality Act 2010, employees are protected against sexual harassment by their employers or by other members of staff. Sexual harassment is unwanted behaviour of a sexual nature which violates your dignity, makes you feel intimidated, degraded or humiliated or creates a hostile of offensive environment.
This can take many forms, such as sexual comments or jokes, physical behaviour (including unwelcome sexual advances), touching and various forms of sexual assault, displaying pictures, photos or drawings of a sexual nature or sending e-mails with a sexual content.
A single incident can constitute harassment.
Employers are responsible for the conduct of their employees during the course of their employment, even when such conduct was done without their approval or detailed knowledge.
Presently, employers can only avoid liability if they can show that they took all reasonable steps to prevent harassment or discrimination. This can be shown via policies that staff are aware of, understand and have received training on, taking steps to deal with complaints effectively and taking appropriate disciplinary action against offenders.
The consultation response acknowledges that cultural and societal change is required to tackle this important area of discrimination. Various changes are proposed to establish clear standards and expectations for individuals and employers in a modern workplace. These include:
- New ‘duty to prevent sexual harassment’ – This was the main finding of the consultation to prompt employers to take pro-active steps. More guidance will follow so that employers can be prepared however this is clearly a step further than the current defence outlined above of taking ‘all reasonable steps’.
- Third party liability – It is proposed that protection for employees who are sexually harassed by a company’s clients or customers will be re-introduced, having been removed from legislation in 2013. In practice this will be more difficult for certain workplaces than others, such as in bars and nightclubs. Employers will need to be aware of the defence of taking all reasonable steps to prevent harassment and make sure they are pro-active instead of reactive. In the case of the bar/nightclubs industry, ensuring all staff are trained to deal with instances of sexual harassment, having clear signage that such behaviour will not be tolerated and will result in them being banned from attending the premises, will be key.
- Changes to time limits to bring a claim – The government have indicated they are ‘looking closely’ at increasing the time limit to bring a claim for discrimination from three months to six months as 59% of respondents to their survey deemed the current limit to be too short.
Although it is unclear as to when these above proposals will be implemented, it is an opportune moment for employers to consider the effectiveness of any company policy and internal training relating to sexual harassment in the workplace.