Sexual harassment in the workplace
The Government has just published a response to its 2019 consultation on possible measures to address sexual harassment in the workplace. This confirms that it will:
- introduce a positive duty on employers to take all reasonable steps to prevent harassment in the workplace, the scope of which would be clarified by a statutory code of practice;
- introduce employer liability for third-party harassment subject to a reasonable steps defence;
- closely look at extending the three-month time limit for bringing (all types of) discrimination and harassment claims to six months.
The new proactive duty is a reformulation of the existing law, where an employer is liable if an incident of sexual harassment occurs and it has failed to take all reasonable steps to prevent it. Although it mirrors the existing requirement to take all reasonable steps, it means that the employer could potentially be held to account through enforcement action by the Equality and Human Rights Commission (EHRC) without the need for an incident to have occurred. Individual claims will still require an incident to have taken place. The Government will consider further what would be appropriate compensation.
The Government will “support the EHRC” in developing the new statutory code of practice, which “will complement” the EHRC’s technical guidance published in January 2020 (discussed here). Additional guidance on practical steps will also be published.
Further consideration will be given as to whether liability for third party harassment will apply only if an incident has occurred. Although not mentioned, hopefully specific guidance on what amounts to reasonable steps in relation to third parties will also be published, given the scope for significant differences in the likelihood of third party harassment in different employment contexts, and the potential relevance of the type of third party (from corporate client engaging in repeat business to one-off interaction with Joe Public) to what steps are reasonable.
It is unclear whether the new proactive duty and third party liability will apply in respect of all the protected characteristics in the Equality Act, although this was suggested in the original consultation paper.
The response confirms that the Government will not make any changes in relation to protection for interns (most of whom it believes are already covered as ‘workers’) or volunteers, nor does it intend to reinstate the employment tribunal power to make wider recommendations to employers who lose a discrimination claim. Equally, suggestions to require the publication or reporting of sexual harassment policies and/or the number of harassment complaints, or for a naming and shaming mechanism, have not found favour.
Changes will be introduced when parliamentary time allows (and indeed we are still waiting for promised legislation on NDAs). In the meantime, it would be prudent for employers to review the steps suggested in the EHRC’s January 2020 technical guidance, which is likely to form the basis for the statutory code in due course. Some of these steps will also be relevant to third party harassment; additional steps might include workplace notices, contractual clauses requiring third parties to have given appropriate training to any relevant staff, and/or specific training for managers to ensure complaints about third parties are dealt with appropriately.
Ill-health proposals / national disability strategy
The Government’s consultation, Health is everyone’s business: proposals to reduce ill health-related job loss, also in 2019, proposed a new right for employees to request workplace modifications on health grounds (in addition to the duty to make reasonable adjustments for disabled employees), measures to improve access to occupational health services and reforms to the statutory sick pay system, including to allow SSP to be paid on a pro rata basis during an employee’s phased return to work after sickness absence, removing the concept of qualifying days and removing the lower earnings limit for eligibility (see here).
The Government has now published its response. It is not going to proceed with the ‘right to request workplace modifications’ (in light of concerns that it might undermine the duty to make reasonable adjustments) and has decided that now is not the right time to make changes to the SSP system (although further consideration will be given to the SSP proposals).
Instead the Government proposes better-integrated health and disability-related information and advice for employers, improving the guidance on returning to work post-coronavirus, improving awareness and advice on sickness absence, and improving access to Occupational Health (including testing a new subsidy to improve access in SMEs). The Health and Safety Executive is to work with other bodies to develop non-statutory guidance to support disabled people and people with long-term health conditions to remain in work, and on managing any related sickness absence, before then exploring the introduction of statutory guidance. Flexible working may also help those with health conditions and the response reiterates that a consultation on making flexible working the default, unless an employer has good reasons not to, will be published in due course. The fit note regime will also be improved, including proposals for an interactive digital version and a wider range of healthcare professionals eligible to sign.
A Health and Disability Green Paper has also been published for consultation here. This includes a discussion of plans to improve employment support for disabled people, for example by improving Access to Work, developing an Access to Work Passport setting out the needs of a disabled individual, and encouraging employer sign-up to the Disability Confident scheme. A White Paper following up on responses received is expected mid-2022. These initiatives are also noted in the Government’s new National Disability Strategy which seeks to remove barriers faced by disabled people in all aspects of their lives, including work and business. A new online advice hub for employers, run by BEIS in conjunction with Acas, has been made available here. The Strategy also states that by the end of 2021 it will have launched consultations on workforce disability reporting (including voluntary and mandatory reporting of disability status, but not the disability pay gap) by businesses with at least 250 employees and on making flexible working the default, and will set out the next steps to introducing up to one week of unpaid carers’ leave.