Harassment and sexual misconduct - A new condition of registration and a new Bill

Universities continue to work to prevent and respond to incidents of harassment and sexual misconduct under increasing pressure and scrutiny. The sector is now going to have to consider forthcoming changes in regulation and legislation in this complex and sensitive area.

A new condition of registration

The OfS explicitly said that it would be watching carefully how the University sector responded to the introduction of the Statement of expectations to prevent and address harassment and sexual misconduct 18 months ago.  The statement included expected systems, policies and processes. If the response was not satisfactory it planned to consider linking it to conditions of registration.  This month, the final independent evaluation concluded that the sector’s response was inconsistent and too slow (it is worth noting that the UUK guidance on the issue was only published in September). In response to the earlier interim evaluation, the OfS had already proposed to introduce a new condition of registration to require registered higher education providers to address harassment and sexual misconduct. It plans to undertake a prevalence survey to understand the scale of the issue and to consult on the proposed regulatory requirements.  

A new Bill

At the end of last month we also saw legislation that would expand the duties and potential liabilities of an employer in relation to sexual harassment in the workplace receive its second reading in the House of Commons.  The Worker Protection (Amendment of Equality Act 2010) Bill, first outlined in the Government’s July 2021 response to the consultation on sexual harassment will now progress (see our report), with Government support, to the committee stage.

Take all reasonable steps to prevent

Currently employers are relieved of vicarious liability for their employees if they have taken “all reasonable steps” to prevent employees carrying out acts of harassment, under the new Bill employers will have a positive duty to take such steps. Although employees cannot bring a standalone claim that an employer has failed in this duty, if harassment is found to have taken place, the employee could be entitled to an uplift in their compensation of up to 25% where there has been a breach. This new duty can also separately be enforced by the Equality and Human Rights Commission against employers.

Liability for third party harassment

The proposed legislation will, as anticipated, re-instate the potential for liability for an employer where employees are subject to harassment by a third party, even a third party over whom the employer does not have direct control. The previous ‘three strikes’ rule (where two incidents of known harassment had to have occurred before liability was triggered) has not been reintroduced. Instead, liability will be triggered on the first incident of harassment by a third party, if the employer has failed to take all reasonable steps to prevent it. This liability will apply regardless of whether the employer has approved, or is even aware of, the actions of the third party. Being harassed by a third party will therefore have substantially the same legal treatment as harassment by another employee with regard to employer liability. What may be deemed to constitute “all reasonable steps” in the two contexts is, however, likely to be different.

Use this time wisely

The sector will therefore need to consider whether the work it is currently undertaking to prevent and respond to harassment and sexual misconduct is sufficient to meet the forthcoming regulatory requirements from OfS as well as the forthcoming legislative requirements from the new Bill. It is considered that the demands of the condition of registration may be greater than the legislation so ensuring compliance with the former should satisfy the latter. We must, however, wait and see. It would be prudent to use this waiting time wisely to expedite activity which is seeking to prevent and respond to harassment and sexual misconduct to ensure compliance by the time the legislation and new condition are introduced.

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