Many employers are not aware that a claim for sexual harassment can be brought against the company as well as the individual accused of sexual harassment, writes Zahra Mahmood, this is irrespective of whether this has happened with the employer’s knowledge.
The #MeToo movement did a lot to highlight the issues around sexual harassment in the workplace and in recent years sexual harassment has been widely reported and many women and men have come out to highlight their own experiences. The movement not only had the effect of getting people to listen, but it also highlighted the flaws within the current regime.
As a result, the government and the Equality and Human Rights Commission responded by consultation and guidance and made a number of recommendations to look at how sexual harassment issues should be managed and taken forward. After considerable delays due to the Covid-19 pandemic, the government recently published its long-awaited response to its consultation on measures to combat harassment in the workplace and strengthen legal protections in the workplace.
Whilst it is unclear as to when these measures will actually come into force, employers should be aware of these forthcoming changes.
One of the key changes the government has pledged to is extending the time limit for bringing a sexual harassment claim. The extension would not only apply to sexual harassment claims, but all claims under the Equality Act 2010.
As the law currently stands, a sexual harassment claim must normally be submitted to an employment tribunal within 3 months from the date of the act to which the complaint relates, although this can be extended by participating with the ACAS early conciliation process. In the event a claim is not brought within the relevant time period, an applicant may apply to the tribunal to extend the time limit when submitting their claim.
The tribunal will only grant such an application if it considers it just and equitable to do so. Whilst it has not yet been confirmed what the new time limit is, the government has suggested that a time limit of six months is likely to be the most appropriate for claims under the Equality Act 2010.
Claims can be brought against employers too
Many employers are not aware that a claim for sexual harassment can be brought against the company as well as the individual accused of committing sexual harassment, regardless of whether the employee’s acts were done with the employer’s knowledge.
This is usually tactical on the part of the claimant as it is usually the employer with deeper pockets. The reformed regime may be described as burdensome but essentially will require employers to take a proactive positive duty to prevent sexual harassment in the workplace. Under current legislation there is no such positive duty or a requirement and an employer can avoid liability by putting forward a ‘reasonable steps’ defence where it can demonstrate that it took all reasonable steps to prevent the harassment.
What this means under the reformed proposed changes is that an employer, can potentially be liable for failing to take preventative measures without the need for an incident to have occurred. Essentially, if there is a problem in the workplace then as part of the inquiry an employer will be scrutinised as to what they did or didn’t do to seek to manage the workplace and to prevent the possibility of sexual harassment occurring.
The government has pledged to introduce a duty for employers to prevent third-party harassment in the workplace. This will be implemented ‘when parliamentary time allows’. However, consultees have highlighted the complexity of introducing such protections without the need for an incident to have occurred. No firm implementation date has been given which may indicate an order of priority. Under this duty, an employer can rely on the ‘reasonable steps’ defence to demonstrate that it has taken all reasonable steps to prevent the harassment.
It is sensible for employers to start thinking about policies and training they provide to their staff now in this area so that they are well prepared for the forthcoming changes. Whilst there is no minimum requirement that can be relied on to demonstrate that an employer has acted on its positive duty to prevent sexual harassment, a good starting point would include ensuring that a company has a well thought out and considered anti-harassment policy in place which is implemented and communicated to staff.
It should ideally set out the appropriate procedures for reporting and investigating sexual harassment as well as protecting victims and highlighting the consequences of being found guilty of sexual harassment. In addition, regular and bespoke training on preventing and managing sexual harassment issue which are catered to the business should be rolled out to managers and supervisors.
Zahra Mahmood is a Solicitor at Employment and Regulatory law practice Constantine Law. She specialises in advising companies and individuals on all aspects of employment law and often partners with HR teams to ensure a smooth running of workplace practices, in turn, avoiding costly and potentially damaging Employment Tribunal claims.