Last week the Government published its response to the 2019 consultation on sexual harassment in the workplace. Although primarily prompted by concerns about sexual harassment, the Government has previously said that any new measures introduced will extend to all forms of harassment prohibited by the Equality Act.
The key proposals the Government has now confirmed it will be taking forward “as soon as parliamentary time allows” are as follows:
- A new duty requiring employers to take all reasonable steps to prevent harassment in the workplace.
- The reintroduction of specific measures to protect workers from third-party harassment.
- Looking closely at extending the time limit for bringing discrimination claims in the employment tribunal from three to six months.
New duty to prevent harassment
Although the scope of the new duty has not been precisely formulated, it seems that it will be the positive correlative of the defence that employers already have to discrimination claims based on the actions of their employees. This defence relieves employers from vicarious liability for these actions if they are able demonstrate that they have taken “all reasonable steps” to prevent their employees from carrying out acts of harassment or other kinds of unlawful discriminatory conduct.
It seems that the Equality and Human Rights Commission will bear the primary responsibility for enforcing this new duty, though employees who have be subjected to workplace harassment will also be able to rely on it. The duty will be supplemented by a statutory code of conduct, which will “complement” technical guidance published by the EHRC last year. Additional “accessible” guidance for employers is also planned.
Third party harassment
When the Equality Act first came into force, it explicitly addressed “third-party” harassment (ie harassment by individuals who were not employees of the claimant). Recognising the difficulties employers faced in controlling the behaviour of individuals they did not directly employ, an employer was only liable if there had been two previous incidents of harassment by a third party.
These provisions were repealed in 2013, and case law subsequently confirmed that in most circumstances workers would no longer have a claim under the Equality if they were harassed by third parties, even if the employer knew this was happening.
The Government has now committed to new legislation to plug this loophole. It seems that the “three strikes” rule will not be re-instated, though it is remains likely that an employer will not be liable unless it knew, or ought to have known, that this harassment was likely to take place.
The Government has accepted that a case can be made for extending the time limit for all Equality Act discrimination claims from three to six months. However, it has stopped short of a commitment to changing the rules, saying instead that it will “look closely” at the possibility.
A number of ideas explored in the consultation, or put forward in the responses the Government received, have been rejected. These include:
- Volunteers and interns: broadening the definition of “employee” in the Equality Act has been ruled out. So the current situation will remain, where interns are probably protected by the Act in most circumstances, but volunteers are not.
- Naming and shaming: calls to introduce a naming and shaming mechanism, along the lines of the one that now applies for breaches of the National Minimum Wage legislation, have been rejected.
- Recommendations: the Government has also rejected calls to reinstate employment tribunals’ powers to make recommendations where employers have been found to be in breach of the Equality Act.