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Published 14 January 2019
In its July 2018 report into workplace sexual harassment, the Women and Equalities Select Committee set out a five point plan for tackling sexual harassment. Our alert on this is available here.
The first point in this plan was to put sexual harassment at the top of employers' agendas by introducing a mandatory duty on employers to protect workers from harassment and victimisation in the workplace, with substantial fines for breach. The suggestion was this duty should be supported by a statutory Code of Practice. The Government consider that, rather than implementing a mandatory duty, the introduction of a statutory Code of Practice may well prove sufficient to improve employers’ compliance with the existing law. They have committed to working with the Equality and Human Rights Commission to introduce this Code of Practice which tribunals will have to take into account when relevant. The Government will not be giving employment tribunals the power to uplift compensation for failure to comply with the code, although they have said they will keep this under review.
While not introducing the mandatory duty now the Government have said they will consult on introducing the duty. This consultation will also cover other elements in the five point plan including extending employment tribunal time limits for bringing workplace discrimination/harassment cases from three to six months, whether further legal protections are needed for interns/volunteers, and how best to strengthen and clarify the laws on third party harassment. No timetable for this has been set out.
The Government have rejected the recommendation that employment tribunals should be able to award punitive damages and they do not plan to reinstate the questionnaire procedure or the ability of the tribunal to make wider recommendations.
The Government have also made a number of commitments in their response including to work with regulators to ensure they are taking action to protect workers from sexual harassment in the workplace.
Employers may be relieved that the Government’s overall response makes it clear that they have little appetite currently to legislate in this newsworthy area. The Government’s response has been criticised by the Select Committee for not going far enough, not least because the EHRC cannot take enforcement action for breach of a Code whereas they could do if there was a breach of a mandatory duty.
For the moment at least any significant change in this area is more likely to be seen in regulated sectors by a regulator taking steps to make it clear that sexual harassment is a breach of an individual’s regulatory requirements.
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