Two years after its consultation started, the Government has published its response to its consultation on sexual harassment in the workplace.

In summary, the outcome to the consultation makes clear that a stronger legal framework is needed to tackle sexual harassment. Whilst this is something that we absolutely agree with, there do appear to be a number of issues in the proposals which are being explored which will need to be addressed if any changes to the law are going to be effective. For example:

  • The legal duty on employers is expected to require employers to take “all reasonable steps” to prevent harassment but what does that mean in practice? An employer may promote a positive working culture and provide regular training but is that going to be enough to discharge the duty? If it is, the reality is that such measures are unlikely to change the attitudes of some employees and the duty is therefore likely to contribute little to reducing incidents of sexual harassment.
  • Extending the time limit for bringing a discrimination complaint from three to six months makes sense in that three months may not be enough time for an individual to process what has happen such that they are in the right place to pursue a claim. However, the Tribunal system cannot cope with the current volume of cases and this has been exacerbated by a Covid-19 related backlog. Unless the current Tribunal system becomes vastly more efficient, an increased timeframe to pursue all Equality Act cases is likely to have an adverse effect on access to justice more generally and this shouldn’t be something which is overlooked.
  • If an act of sexual harassment results in an employee resigning and pursuing a claim for unfair dismissal on the basis that they have been constructively dismissed by their employer, the employee would still be subject to a three month time limit in so far as the unfair dismissal claim is concerned. This is likely to cause confusion for individuals and uncertainty for employers.
  • There are a number of situations in which it is difficult to see how a third-party harassment provision (i.e. a provision requiring employers to prevent their employees from being harassed by third parties in the course of their employment) would work. For example, in the hospitality industry, employees are likely to come into contact with the drunk and disorderly. Whilst hospitality businesses can (and should) take steps to reduce the number of incidents of sexual harassment (perhaps by having security guards to remove ‘offenders’ and clear signage), it is unfortunately unrealistic to think that they will be able to completely protect their staff and reduce the number of incidents of sexual harassment. Getting the legislation ‘right’ in this area isn’t going to be an easy feat.

Whilst we agree that employers can and should be taking action to reduce incidents of harassment in the workplace, the current proposals feel like they will either be grossly ineffective or leave employers carrying the can for what is a much wider societal problem. It is also worth noting that the legislation to implement the changes will be brought forward "when Parliamentary time allows" -  given the current issues the government is tackling it therefore appears unlikely that these protections will come into place anytime soon.