25 November: International Day for the Elimination of Violence against Women

As awareness of violence, harassment and discrimination against women and people with protected characteristics builds, Fieldfisher looks at what the UK government is doing to tackle these issues in the workplace.
 
The date marks the anniversary of the state-sponsored killing of three sisters in the Dominican Republic, but is used to raise awareness of violence against women more generally. 

This is defined in Article 1 of the 1993 UN Declaration as:

"[A]ny act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” 

Article 2 of the declaration expressly covers sexual harassment and intimidation at work.

How is the UK tackling harassment in the workplace?

In 2018, the UK's Women and Equalities Select Committee published its report on sexual harassment in the workplace. That prompted a public consultation, undertaken between July and October 2019. 

In July this year, the UK Government Equalities Office finally published its response to the consultation, which suggested that three legislative changes are planned, although the timing of their introduction is unclear. 
The proposed changes are:

(a) The introduction of a mandatory duty on employers to protect workers from harassment and victimisation in the workplace;

(b) A new mechanism for dealing with third party harassment; and

(c) An extension of the time limit for bringing Equality Act 2010 claims in the Employment Tribunal from three to six months.

Mandatory duty

The mandatory duty will require employers to prevent sexual harassment and is designed to encourage employers to prioritise prevention by taking proactive steps to make the workplace safer for everyone. 

In a sense, this aligns sexual harassment with health and safety, where there is already a statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all of employees. 

The new duty will require employers to take "all reasonable steps" to prevent harassment. The suggestion that employees could enforce this duty collectively in a similar way to enforcing information and consultation obligations under the TUPE (Transfer of Undertakings (Protection of Employment)) regulations, has been rejected. 

An incident of harassment must have taken place for a claim to be made. Where employers have been found liable, the Equality and Human Rights Commission has increasingly exercised its power under section 23 of the Equality Act 2006 to pursue legally binding agreements with employers to take specified corrective action. We can expect to see that trend continuing. 

A statutory code of practice and accompanying guidance is also proposed to support the new duty.

Mechanism for dealing with harassment

The second proposal involves the question of whether, and in what circumstances, an employer should be held liable in situations where its employees are subjected to harassment by third parties. 

This will be of particular concern to employers with employees in public-facing roles.

Liability for third party harassment was introduced in section 40 of the Equality Act 2010. That provision required the employer to have been aware that a person had been harassed on at least two previous occasions (whether by the same or different third parties) and to have failed to take such steps as would have been reasonably practicable to prevent the third party harassment taking place. That provision was repealed in 2013.

The new proposal would not require previous incidents of harassment. Instead, the employer's defence would be that it took "all reasonable steps" to prevent the harassment occurring.

For employers and HR teams wishing to plan ahead, both of the above proposals require proactive, practical steps to prioritise prevention.

Training and policy development will be obvious measures, as will be the introduction of "zero tolerance" type signage in areas and industries where there is a higher likelihood of sexual harassment taking place. 

Organisations should also be looking at third party commercial contracts to ensure they contain commitments and warranties from suppliers, to ensure suppliers are taking their harassment duties seriously in respect of the actions of their employees.

Extension of time for bringing claims

Finally, the government will consider an extension of the three-month time limit for bringing claims in the Employment Tribunal, recognising that this should be applied to all protected characteristics, rather than just sex. 

One argument in favour is that internal investigations can take time, and the existing time limit puts pressure on an individual to make a claim if an internal process is taking time to reach its conclusion. 

Equally, a longer period might reduce the sense of urgency in any internal process in a situation where swift action would generally be beneficial to all concerned. 

Employers still need to be thinking creatively about ways in which disputes and complaints can be resolved quickly internally, without compromising a fair and balanced process.

This article was authored by Richard Kenyon, employment and pensions partner at Fieldfisher.