Incoming duties post-consultation for employers in preventing harassment

The current position on defending a sexual harassment case is that the employer must show they have taken all reasonable steps to prevent the harassment from happening.

Under proposed new legislation the government have committed to not only keeping the current position in place, but also an employer may be liable for not taking all reasonable steps to prevent harassment even where no incident occurs. It is unclear at this stage whether this duty will apply to all types of harassment or only sexual harassment.

After being repealed in 2013, the duty to protect against third-party harassment will be coming into force again. It is unclear currently whether this will extend to all harassment.

The new duty will mean that employers of all types will need to take all reasonable steps to prevent third party harassment regardless of the risk in the type of workplace. By taking all reasonable steps, should any incident occur, this will act as their defence. The detail of this duty will become clearer at a later date as the government work with stakeholders.

Interns, often junior members of staff, commit their time to gain experience meaning they are often more vulnerable in the workplace. As ‘workers’ for the purpose of employment law, the government has clarified that interns will be afforded the same protection against sexual harassment in the workplace.

Those who are volunteers giving up their time for free will not be automatically protected across the board by the new duties as the government felt that this would be an unfair level of responsibility to impose on employers. There is some complexity around this as the government explored the fact that where volunteers are more regularly volunteering particularly with larger companies who rely on this support, it may be suitable to extend the protection to these volunteers.

At a minimum, all employers should have an anti-harassment policy which covers volunteers and all staff.

Under the consultation, the government intends to extend the time limit for brining cases under the Equality Act to the Employment Tribunal, for example harassment and discrimination cases, from three months to six months. This change has come about from looking at how long internal procedures can take when investigating cases in contravention of the Equality Act, the extension will mean that the employee is likely to be able to take the internal route and still have time remaining to engage the tribunal process where desirable.

When the legislation is implemented in full it will be important to employers to understand the extent of their roles in preventing sexual harassment and harassment in general in the workplace. Further information will be available in due course, in the meantime for a full look at the consultation and response please see here.