Following the start of the #metoo campaign in 2017 and the high profile cases involving sexual harassment at work allegations including Harvey Weinstein, Phillip Green and the Presidents Club, serious questions have, quite rightly, been asked as to whether there are adequate protections in place to prevent sexual harassment in the workplace.

The Equality Act 2010, makes it clear that sexual harassment in the workplace is against the law but that hasn’t put an end to sexual harassment at work.  As such, the Government launched, on 11 July 2019, a much anticipated consultation on sexual harassment in the workplace and how the current protections could be strengthened.

The proposals outlined in the consultation included:

• Reinstating employers liable for harassment of its employees by third parties, e.g. customers or clients.  This was a protection that was previously in force but was abolished in 2013 by the Government but it looks like from the proposal it will be returning.  Previously, this protection only applied if there had been two known previous occasions of third party harassment – the so called “3 strikes” rule. However, under the proposal, employer liability could be triggered without the need for a previous incident
• Extending sexual harassment protections to volunteers and interns
• Extending the time limits for brining a claim from 3 to 6 months.  It would appear that this extension would apply to all claims under the Equality Act 2010 and not just sexual harassment claims; and
• Placing a new legal duty on employers to take all reasonable steps to prevent sexual harassment.

Concrete changes are still a little way off with consultation closing on 2 October 2019.  However, it does appear that there is no real momentum to make these changes.

In the meantime, employers are remined that they can still be vicariously liable for acts of harassment and victimisation carried out by their employees in the course of their employment.  In order to defend such claims, employers need to show that they took “all reasonable steps” to prevent their employees acting in this way.  My experience is that this can be a high hurdle for employers to overcome.  Simply having a bullying and harassment policy that sits on the shelf is not enough.  Employers need to take positive steps such a providing training for managers to establish the defence.  In light of the consultation, employers would be well advised to review what they are doing to show that they are taking these reasonable steps to prevent sexual harassment in their workplace.

If you require further information on what steps your organisation should be taking to implement an effective anti-harassment culture, please contact Matt Jenkin.