In the dying days of our second female Prime Minister's tenure, the government is renewing its focus on the position of women in the country and in the workforce. Its latest concrete proposals come in form of a consultation on sexual harassment in the workplace, launched on 11 July 2019, which contains some eminently sensible suggestions for reform. Over the next few days, we will be posting updates examining a few areas covered under the consultation.
The bulk of the consultation looks at strengthening the legislative framework around prevention. Planned measures already underway include a new technical guidance note from the Equalities and Human Rights Commission (EHRC) focusing on sexual harassment, and a statutory Code of Practice, which will build on that guidance and on which the EHRC plans to consult later in the year. The measure will be supplemented through new government-commissioned research to identify the most effective preventative workplace interventions, and the government intends to make any lessons learned widely available.
The Code will focus, among other things, on the "all reasonable steps" defence: where an employee has harassed a colleague in the workplace, the employer will be liable under the Equality Act 2010, unless it can show that it took all reasonable steps to prevent that harassment taking place. The defence is currently very rarely run in practice, because, the consultation speculates, it is not fully understood. To remedy this, the Code will detail what "all reasonable steps" entails. In reality, we suggest that the defence is rarely run in practice, not because the test is little understood, but because it sets a high bar. The view is that if workplace harassment has taken place then, other than in extreme cases, that suggests strongly that the employer cannot have taken all reasonable steps to prevent it. To the extent that the Code intends to set out a concrete list of measures for employers to observe, employers will certainly welcome a clarification of the way in which the test will be applied. Furthermore, offering employers the "carrot" of a valid defence in the event that they put a comprehensive package of measures in place may incentivise better preventative programmes. However, a preliminary concern is that additional guidance may lead to a "tick-box" approach in relation to prevention, and may inhibit a more fundamental drive toward cultural change. We will reserve judgement in this regard until we have sight of concrete proposals.
The "stick" is a proposal to introduce a new mandatory, standalone duty on employers to take all reasonable steps to prevent harassment in the workplace (taking into account any new guidance or statutory Code). The obvious question then is how such a duty would be enforced. A possibility identified by the consultation is to either shift the burden of enforcement entirely from individual "victim" employees to the EHRC or, like other workplace provisions of the Equality Act, to provide for dual enforcement by individuals (through civil claims) and by the EHRC. However, in practice, it is illusory to expect the EHRC to begin to take on large scale enforcement activities, even after it is given appropriate status to accept whistleblowing disclosures later this year – it is simply not set up or resourced to handle cases in any significant volume. The focus will need to be on individual enforcement.
This raises further questions: should a claim for breach of this new duty be standalone, or dependent on and linked to a harassment claim? What remedy should be attached to such a claim, given that it may be difficult (if not impossible) to show financial loss? The government's suggestion is that remedy should be modelled on protective awards in the context of TUPE and collective redundancy consultation, up to a maximum of 13 weeks' gross pay. In our view, it will be difficult here to strike a balance between achieving an effective deterrent effect (and thereby an effective incentive), and providing for remedies to remain proportionate. If a remedy akin to a protective award is available to the workforce as a whole regardless of whether there has been any incident of harassment, this may trigger very high value financial claims against businesses that do not have cultural problems. If, on the other hand, the remedy is linked to individual successful harassment in, then the additional amount, while substantial, is unlikely in our view to add any significant deterrent to the deterrent already attached to a harassment claim with uncapped liability.
We will be interested to see how this discussion develops. In addition to consulting on specific proposals, the government has also invited input on any alternative measures to prevent sexual harassment, including through enforcing transparency on preventative measures, and this is an area, in our view, open to creative solutions.