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Sexual harassment: employers to be liable for failure to prevent

Employers are to be liable if they fail to prevent sexual harassment at work.

The government had published a response to its 2019 consultation on proposals to give employees and others greater protections at work against sexual harassment. Three main points arise:

  1. There will be a new preventative duty (introduced ‘as soon as Parliamentary time allows’) requiring employers to take all reasonable steps to prevent sexual harassment. The scope of this new proactive duty isn’t yet clear but it promises to include a new code of practice from the EHRC (complementing the technical EHRC guidance published in 2020). Volunteers and interns would not be covered by this new duty because the government believes that most interns are probably covered already (to the extent they are employees or workers) and to give protection to volunteers would create a ‘disproportionate level of liability and difficulties for the organisation’, especially those in the voluntary sector.
  2. ‘New’ protections against third-party harassment will be introduced, again ‘when Parliamentary time allows’. However, as we pointed out in our comment on the 2019 proposals, the reality is that when the Equality Act 2010 was introduced it contained a specific offence of harassment by third parties and this was repealed in 2013 after lobbying from business. This ‘new’ protection will be subject to an ‘all reasonable steps’ defence.
  3. The government will ‘look closely’ at extending the tribunal time limit for all Equality Act claims from three months to six months. But this is unlikely to happen soon as the government is clearly concerned about the already overloaded tribunal system (worsened by the pandemic).