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This publication is available at https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace/outcome/consultation-on-sexual-harassment-in-the-workplace-government-response
1. Ministerial Foreword
While sexual harassment in the workplace has been unlawful for decades, in recent years we have more people, predominantly women, feeling empowered to share their experiences, showing that there is still a real, worrying problem with sexual harassment at work, as well as in other settings.
Everyone should be able to live and work without the fear of encountering violence or harassment. That is why this government is committed to tackling sexual harassment in all its forms.
The pandemic has drastically changed how and where we work, with many people, where possible, working from home, while the conditions for key workers have changed beyond recognition. As we begin to map out the future of the workplace we have the chance to think more broadly about the fair treatment and environment every employee should expect. As people start to return to offices and other workplaces we must be clear that ‘building back better’ extends to every corner of our lives.
The steps we plan to take as a result of this consultation will help to shift the dial, prompting employers to take steps which will make a tangible and positive difference. We want to provide the right legal framework, which supports employees and employers alike. We will be providing further protections to employees who are the victims of sexual harassment, whilst also furnishing employers with the motivation and support to put in place practises and policies which respond to the needs of their organisation. We now have a real opportunity to transform the workplace and guarantee everyone an environment in which they can thrive and feel safe.
Rt Hon Elizabeth Truss MP
Minister for Women and Equalities
Sexual harassment in the workplace has been prohibited by law for decades, yet this unacceptable conduct and its damaging effects continue. The revelations that have emerged in recent years have made it abundantly clear that this is a problem that persists in our society, despite the existence of these legal protections.
The law alone cannot fix this problem. We also need to see cultural and societal change. Nevertheless, it is vital that we have a strong legal framework in place, which both establishes clear standards and expectations for individuals and employers alike and is responsive to the modern workplace. The government therefore committed to consult to ensure that our legislation was operating effectively following the 2018 Women and Equalities Select Committee (WESC) report on sexual harassment in the workplace.
Since this consultation closed, our living and working conditions have changed dramatically. The COVID-19 pandemic has not only catalysed a shift towards many more people working from home – often, in this case, because their workplace is temporarily closed – but has also meant that dealing with the impact of the pandemic has been the pre-occupying focus for employers. As we start to return to offices and workplaces, and address whether there will be a permanent shift in ways of working, it is an opportunity to refocus on the key issue of ensuring a safe working environment free from harassment, whether at home or in the office.
Our consultation was designed to explore several areas:
- the evidence for the introduction of a mandatory duty on employers to protect workers from harassment and victimisation in the workplace
- how best to strengthen and clarify the laws in relation to third-party harassment
- whether interns are adequately protected by the Equality Act 2010 (the Act) and the evidence for extending the protections of the Act to volunteers.
- the views of stakeholders on extending employment tribunal time limits in the Act from 3 months
3. Executive summary
The consultation ran from 11 July to 2 October 2019 and had 2 parts:
- technical consultation
- public questionnaire
3.1 Technical consultation
The technical consultation invited detailed responses on the legal framework around preventing sexual harassment in the workplace.
- how to ensure employers take preventative steps on harassment
- the law surrounding employers protecting their staff from being harassed by clients, customers, or other people from outside their organisation
- whether interns and volunteers are adequately protected by current laws
- whether people should be given longer to take a harassment, discrimination or victimisation claim to an employment tribunal
We received 133 responses to this part of the consultation. Nine responses were from individuals, including academics working in this area.
The other 124 responses were from organisations, broken down as follows.
|Type of organisation||Number of responses|
|Voluntary sector and charities||40|
|Sector and professional bodies||36|
|Legal sector organisations||9|
Where questions requested a ‘Yes, No, Don’t know’ response, we have conducted quantitative analysis. In order to complete thematic analysis on the subjects raised within qualitative responses, we also created a coding framework, tagging data with appropriate descriptors.
3.2 Public questionnaire
The public questionnaire was a set of online questions aimed at gathering insight on the experiences of individuals.
It was therefore targeted towards anyone who:
- had experience of sexual harassment or other types of discrimination at work
- had experienced this and is or had been a volunteer or an intern
- had managed or supported someone through these experiences
- had thought about taking a case of this type to an employment tribunal
We received 4,215 responses to this element of the consultation.
Of these respondents:
- 54% said they had experienced harassment at work
- 36% said they had not
- 11% left this blank or said they did not know
The demographic breakdown of respondents to the public questionnaire was as follows, it is worth noting the high percentage of women respondents.
|Gender||Number of responses||Percentage of responses|
|Non-binary or gender fluid||9||0.2%|
|Did not say||807||19%|
The age group of respondents was as follows.
|Age group||Number of responses||Percentage of responses|
|15 and under||2||0.04%|
|16 to 25||314||7%|
|26 to 35||840||20%|
|36 to 45||748||18%|
|46 to 55||619||15%|
|56 to 65||526||12%|
|66 to 75||252||6%|
|76 to 85||48||1%|
|86 and over||5||0.1%|
|Prefer not to say or blank||861||20%|
3.3 Main findings
The main findings of the consultation were that many were supportive of a new duty to prevent harassment, and believed that it would prompt employers to take positive steps.
Consultees highlighted the complexity of introducing protections from third-party harassment without the need for an incident to have occurred, but were generally supportive of employers being able to use the defence of having taken all ‘reasonable steps’, which already exists in the Act.
On extending protections for volunteers and interns, while respondents were supportive of the proposal in principle, many raised concerns about the impact this could potentially have on the third sector, particularly the effect of administrative burden on smaller charities.
Finally, on extending time limits, the impact of trauma arising from experiencing sexual harassment was a common theme across responses, as was the potential barrier to justice that the current limit could create, notably in instances of pregnancy and maternity discrimination.
Following this consultation, the government intends to introduce a duty requiring employers to prevent sexual harassment, as we believe that this will encourage employers into taking positive proactive steps to make the workplace safer for everyone.
Additionally, in the interests of providing clarity, we will introduce explicit protections from third-party harassment.
On extending the protections under the Act to volunteers and interns, we believe that many of the latter group would already be protected, and that extending protections to the former could have undesirable consequences.
Finally, we recognise the impact that extending time limits could have for those bringing sexual harassment cases and that 3 months can be a short timeframe. Therefore, we will look closely at extending the time limit for bringing Equality Act 2010 based cases to the employment tribunal from 3 months to 6 months. All of the commitments made as a result of this consultation will apply to Great Britain (England, Wales and Scotland). Those which require legislative changes will be introduced as soon as parliamentary time allows.
This package of measures will not only strengthen protections for those affected by harassment at work, but will also motivate employers to make improvements to workplace practices and culture which will benefit all employees. As debate about the future of the workplace proceeds in the light of the last year’s developments, these steps will ensure that whatever it looks like, people feel safe and supported to thrive.
4. Consultation feedback
4.1 Preventing sexual harassment in the workplace
Section 1 of the consultation focused on the central question of how employers could be better encouraged to take steps to prevent sexual harassment happening in their workplaces.
In particular, questions centred around the suggestion proposed by several stakeholders, including the Equality and Human Rights Commission (EHRC) and WESC, of introducing a duty requiring employers to prevent sexual harassment in their workplace. This would be a reformulation of the existing law, under which an employer is liable only if an incident of sexual harassment occurs and they have failed to take preventative steps.
The consultation proposed that, if a proactive duty were introduced, it should mirror the existing legal requirement on employers, but shift the point of liability to emphasise the importance of taking necessary preventative steps before an event occurs. Therefore, under the proposed duty, employers would still be required to take ‘all reasonable steps’ to prevent sexual harassment in their workplace – just as they are now – but they could potentially be held to account for failing to take these actions without the need for an incident to have occurred.
This potential shift in the point of liability raised a number of related questions around enforcement, which were also explored within the consultation.
- whether, in addition to enforcement action by the EHRC, individuals should be able to take enforcement action without having experienced an incident of sexual harassment
- if so, what compensation should be available to an individual, with the approach used by the Transfer of Undertakings (Protection of Employment) Regulations 1981 (known as ‘TUPE’) proposed as a potential model
Respondents were asked:
- if a preventative duty were introduced, whether they agreed with our proposed approach
- if they thought a new duty to prevent harassment would prompt employers to prioritise prevention
60% of respondents thought a new duty would prompt employers to prioritise preventing harassment, and 57% of respondents agreed with the proposed approach.
A common theme in written responses was the belief that the duty would have the benefit of ensuring more of a focus on prevention, and raising awareness of expectations on employers. Responses also emphasised the importance of improving understanding of what constitutes ‘all reasonable steps’ and the need for strong enforcement to back up the duty, without which it was thought that the duty could only have limited impact.
When asked whether they agreed that dual enforcement by the EHRC and individuals would be appropriate, 53% of respondents agreed (representing 77% of those whose responses were overall in favour of a duty), while 32% of the respondents either didn’t answer this question, or said they ‘didn’t know’. Only 14% responded that dual enforcement wouldn’t be appropriate.
Even among those in favour of dual enforcement, many respondents raised concerns about the EHRC’s capacity to enforce the duty effectively, with several calling for it to be better resourced and for it to be given stronger enforcement powers.
When asked whether the TUPE provisions should be used as a model for compensation when bringing claims against a new duty, only 16% of respondents supported dual enforcement and thought the TUPE model should be mirrored. 27% of respondents opposed this approach altogether, whereas a small minority (7%) disagreed because they thought an alternative compensation model should be introduced. 29% of respondents provided no response to this question, while 17% said that they ‘didn’t know’.
The final question in this part of the consultation asked respondents if they could think of any alternative or supporting requirements that would be effective in incentivising employers to put measures in place to prevent sexual harassment.
There were a wide variety of responses to this question but common themes included:
- requiring employers to publish their sexual harassment policy
- providing further guidance and advice for employers
- enabling unions and staff networks to play a greater role
There were mixed responses on the role of data, with some advocating for it to be published, with others raising issues around anonymity and reliability of reporting. A small number of respondents proposed the introduction of fines, while others suggested creating an accreditation scheme. Lastly, some raised the role of the EHRC in acting as an effective enforcement body.
Within the public questionnaire respondents were asked whether the law should require employers to take proactive steps to protect their staff from sexual harassment, 96% said ‘yes’.
We agree with the majority of respondents, who thought that a new preventative duty would lead employers to prioritise prevention, and so intend to bring forward legislation to introduce a new duty as soon as parliamentary time allows.
While we acknowledge the views of several respondents, who thought that the law alone is unlikely to be the answer to tackling this issue, we believe it is an important and symbolic first step. Our focus on preventative action clearly signals what we expect of employers and should serve to motivate comprehensive responses to issues of sexual harassment. This should also have a positive effect on workplace culture more broadly.
We anticipate that the duty will closely follow the formulation suggested within the consultation, with employers required to take ‘all reasonable steps’ to prevent harassment, and for an incident to have taken place before an individual can make a claim. However, we will engage with affected stakeholders throughout the process of drafting the legislation, including on the matter of compensation models, to ensure that what is introduced works properly when applied to real workplaces.
As highlighted in many of the responses, increasing employer understanding and awareness of the preventative steps they should be taking to comply with the law and make workplaces safer is vital if a preventative duty is to have the desired impact. Therefore, in tandem the government will also focus efforts on employer action and enforcement.
As the statutory body responsible for enforcing equality legislation, the government- sponsored EHRC has the power to enter into legally binding agreements with employers who have been found liable for breaches of the Act. Over the last 3 years, the EHRC has used this power strategically to tackle sexual harassment in the workplace. It has pursued agreements with employers who have been found liable for sexual harassment by employment tribunals with a view to improving their practices and procedures. For example, Sainsbury’s supermarket recently agreed to improve the way it deals with workplace harassment. The government supports the EHRC’s strategic enforcement action and will discuss scope for further EHRC action in this area with the EHRC chair and senior executives. We also expect the EHRC’s action to contribute to the ongoing shift which has seen employers take this issue more seriously.
The government will also support the EHRC in developing a statutory code of practice, as recommended by the WESC’s 2018 report. This will complement the technical guidance published by the EHRC in January 2020. We believe that this has the potential to significantly improve employers’ ability to engage with their existing duties in this area, and help them to understand whether they have taken ‘all reasonable steps’ to prevent harassment.
To compliment this new code of practice, we will produce accessible guidance for employers. Bringing together employers’ organisations and academics in this field, this guidance will outline the practical steps that organisations can take. It will be designed to help proactive employers check that they are taking the most effective action, as well as being a good starting point for organisations that have recognised the need to take concerted action on this issue.
The steps the government is taking to increase employers’ understanding of what they should be doing to prevent sexual harassment will have the additional benefit of helping to improve staff understanding of what they should expect from their employer. This greater level of awareness and expectation should assist individuals when making the decision about whether to bring a legal challenge when an incident has occurred, and when prevention has not been taken as seriously as it should have been.
4.2 Third-party harassment
Section 2 of the consultation focused on whether an employer should be held liable in situations in which employees are subjected to harassment by third parties (for example, customers and clients) in their workplace, and how this liability should work in principle.
In light of case law on this matter, the consultation proposed to introduce explicit legal protections against third-party harassment in the workplace. The consultation questions then focused on options for the design of these protections.
The first of these options looked at whether, in a context in which harassment is likely, an employer should be liable for failing to take all reasonable steps to prevent third-party harassment without the need for an incident to have occurred. Or, if liability should only apply if an incident has occurred, whether a single incident or more should be required.
The second topic explored within this section was whether the employer defence of having taken ‘all reasonable steps’ to prevent the harassment from occurring – as applies to existing harassment protections – should be replicated for third-party harassment.
The responses to whether employer liability for third-party harassment should be triggered without the need for an incident were evenly split, with 34% of respondents agreeing that a new protection against third-party harassment should not require the need for an incident to have occurred, while 33% of respondents disagreed. There was also a high percentage of respondents (33%) who either said that they ‘didn’t know’ or didn’t give a view. Of those who explicitly disagreed, 44% thought there should be a requirement for a single incident, and no responses proposed that the requirement for 3 incidents to have occured should be reinstated, as was the case under the previous third-party harassment provisions which were repealed in 2013.
A number of responses highlighted the fact that in many workplace environments it was possible to be aware of a heightened risk of harassment without the need for an incident to have occurred. The opposite was also argued by other respondents, who noted the difficulty for an employer in foreseeing how third parties might behave given high levels of unpredictability.
Respondents were then asked whether they agreed that the defence of having taken ‘all reasonable steps’ to prevent harassment should apply to cases of third-party harassment. Whether or not they had supported third-party harassment protection, 68% of all respondents supported the idea that if the protection existed, a defence of having taken ‘all reasonable steps’ should be available to employers, with only 1% explicitly opposing this proposal and 28% either saying they didn’t know or giving no answer to this question.
Of respondents in favour of the ‘all reasonable steps’ defence, 39% stipulated that ‘all reasonable steps’ would need to be clearly defined, especially if an employer were to be held liable for not taking ‘all reasonable steps’ without the need for an incident having taken place.
When public questionnaire respondents were asked whether employers should be legally responsible for protecting their employees from third-party harassment, 87% said ‘yes’, 6% ‘didn’t know’, and 5% said ‘no’.
The government has previously committed to legislate on this issue and that remains the case. In light of this consultation we will introduce workplace protections against third-party harassment when parliamentary time allows.
Respondents highlighted several practical difficulties presented by introducing liability without an incident. Designing a system that would work across the full breadth of employment contexts would add an undesirable level of complexity. While there are certainly employment settings in which an employer should be expected to know that there is a higher likelihood of sexual harassment, for example in the hospitality industry, there are equally workplaces in which sexual harassment by third parties might reasonably come as quite unexpected to the employer, and would be difficult for them to anticipate.
The proposed way to balance this range of possibilities is the ‘all reasonable steps’ defence – a defence which is both flexible, and allows for proportionality. We have considered the view expressed by many respondents that all the steps themselves would need to be explicitly outlined. However this would remove that flexibility to take a proportional approach based on the individual circumstances of the workplace. The alternative would be to set out a list of ‘all reasonable steps’ by workplace context, which would mean creating an extremely complex system that might still not account for every workplace context and certainly wouldn’t be exhaustive. Either of these approaches risks creating a ‘tick-box’ approach among employers, who would likely only focus on establishing the defined ‘all reasonable steps’, without giving proper consideration to the specific needs of their workplace.
Having carefully considered the responses received, we will continue to work with stakeholders to help shape the protection, particularly on whether it should only apply in situations in which an incident of harassment has already occurred. We do intend to replicate the employer defence of having taken ‘all reasonable steps’ to prevent the harassment, as is currently the case under the Act. This is consistent with the wider approach to sexual harassment legislation and will provide clarity to all stakeholders.
4.3 Volunteers and interns
The transient nature of many voluntary roles and internships makes it all the more important to consider carefully the protections that these groups have. The power dynamics often involved in sexual harassment mean that they can be particularly vulnerable. They may also be unaware of their rights and less likely to report instances as a result.
The government expects organisations to protect volunteers and interns from discrimination, harassment and vicitmisation, and we know that many organisations do this as a matter of course. While there is no statutory definition of ‘intern’, we think that those commonly referred to as such, who have a contract of employment would already be covered by the protections in the Act. Similarly, where an intern is required to work and comply with instructions, in most cases they would likely be classed as a worker, and therefore also covered by the Act’s protections.
However, the consultation explained that the Act’s workplace protections are explicitly linked to employment status and as such they do not cover volunteers. The consultation set out to gather evidence on whether it would be appropriate to extend these protections to volunteers. It also asked respondents to consider if there were any groups of interns who were not covered by the current legislation.
In addition, we asked if respondents could foresee any negative consequences to expanding the Act’s protections to cover all volunteers, and whether any expansion should apply to all volunteers.
Separately, the public questionnaire asked if people thought organisations should be responsible for the protection of volunteers and interns from harassment and discrimination.
When asked whether sexual harassment should be treated the same as other unlawful behaviours under the Act when considering protections for volunteers and interns, 80% of respondents agreed. Respondents with particular knowledge of the voluntary sector were more likely to have answered no to this question, with 29% of respondents working in the sector opposed, compared to 13% of all respondents.
20% of respondents, including several who agreed in principle, identified potential problems. Those with experience in the voluntary sector were particularly concerned about the potential chilling effect on the sector, including the increased administrative burden that would often fall on volunteers themselves and the impact on the nature of volunteering.
When asked about the potential negative consequences of expanding protections to volunteers, 50% of respondents felt that the introduction of legislative protections would have negative impacts. This rose to 75% across the voluntary sector organisations who responded. 34% of respondents to this question raised issues around the increased administrative burden on charities, with particular concerns around the impact on small organisations and on volunteer managers. It was pointed out by several respondents that the compliance burden would often fall on volunteers.
Finally, when asked whether all volunteers should be included, and if not, which groups should be excluded and why, a narrow majority of respondents thought that, if legislative protections were extended then all volunteers should be included (53% of those who responded to the question). Those that felt there was an argument for excluding some volunteers all suggested that the exclusion should be based on the type of volunteering, with a quarter of them suggesting that the type of organisation should also be taken into consideration. Respondents primarily considered that less formal, ad hoc roles could perhaps be excluded.
Only 65% of respondents answered the question about whether they were aware of any interns not meeting the criteria for protections under the Act, with only 15% of all respondents saying they were. The groups they identified were Parliamentary interns, student placements, work experience placements (including those for people with disabilities and ex-offenders), unpaid ‘volunteers’ working in the media, and trainee freelance musicians. Eight respondents commented on the need for clarification of what counts as an internship, either through guidance or a legal definition.
When public questionnaire respondents were asked whether employers should be legally responsible for protecting volunteers from harassment, 92% said yes. When asked the same question in relation to interns, 93% believed employers should be legally responsible.
Responses to this part of the consultation helped us to identify 2 distinct groups:
- those who could be termed as ‘working for free’
- those who could be described as ‘pure’ volunteers
The first group refers to those who are working to gain professional experience and who would likely consider themselves to be interns. The examples highlighted by respondents included those working in the film and television industry or for political parties. Several raised concerns that these groups might be particularly vulnerable in a workplace, given their junior positions within organisational hierarchies. However, we believe that in almost all cases these groups would, and should, be covered by the protections in the Act, as even without being paid they would likely be considered to be workers.
By contrast, we do not consider that the same protections should apply to ‘pure’ volunteers. It is clearly right that an individual who gives their time for free to support their community or an issue they care about should be protected from harassment, discrimination and victimisation. However, extending protections to cover people carrying out ad hoc, informal volunteering, or those supporting small, volunteer-led organisations, could create a disproportionate level of liability and difficulties for the organisation, which could outweigh the service they provide.
The treatment of volunteers becomes particularly problematic when considering the wide range of roles the term encompasses. While formalised volunteering arrangements might be more easily captured by blanket legal protections, protections for less formal arrangements must be balanced with maintaining informality and ease. For large organisations reliant on the support of volunteers their employed staff would already be within scope of the Act’s protections. Therefore extending these protections to their volunteers would seem proportionate. It similarly seems appropriate that the Act should apply to people volunteering in a more formal capacity that closely mirrors a workplace relationship. However, this is less appropriate for individuals helping out at, for example, a one-off school event, or someone who occasionally volunteers at a local youth group. It is important that any steps we take do not deter individuals from volunteering, or result in organisations finding they have to deal with unnecessary red tape.
As a matter of good practice, we would expect all responsible employers to have an effective anti-harassment policy which covers all staff, not just employees. This means that they should also be considering people like agency workers, consultants, volunteers, and interns, with the aim of ensuring a safe working environment for everyone across their organisation.
We are aware of other groups who can fall outside of the scope of the Act’s protections. Responses from organisations such as the Incorporated Society of Musicians highlighted the fact that the working agreements entered into by freelancers can unwittingly put them outside of certain employment protections. We would expect broader issues around which groups are covered by the Act to be an aspect of any wider future review of it. However, where volunteers and interns and others are not covered by the Act, they may still have legal recourse against the organisation that engages them under other legislation, for example, the common law duty of care, health and safety legislation and the Protection from Harassment Act 1997.
4.4 Tribunal time limits for Equality Act cases
There is currently a 3-month time limit for bringing a claim under the work provisions of the Act (except for equal pay cases) to an employment tribunal. However, tribunals already have the discretion to provide extensions where a tribunal judge considers it is ‘just and equitable’ to do so.
Despite this, evidence given to the WESC’s Sexual Harassment in the Workplace inquiry suggested that the current limit acts as a barrier to justice.
In sexual harassment cases time limits may be particularly problematic, given that the trauma experienced can be a significant delaying factor in considering recourse. Nevertheless, the time limit can also be a factor in other Equality Act-based cases. For example, in pregnancy and maternity discrimination cases, it is unlikely that starting legal proceedings will be of paramount concern during what is already a period of significant change in someone’s life.
Furthermore, the evidence submitted to the WESC also suggested that, despite a process for granting extensions being in place, many people are unaware of this option, and legal advisors may in fact advise against submitting a late claim due to the uncertainty of whether it would be granted by the tribunal.
The consultation therefore asked:
- whether 3 months was sufficient for any case brought under the Act
- if there was a basis for only extending the limit for cases brought on some grounds
- if the limit were to be extended, what the new limit should be
Of the 100 respondents to this question in the technical survey, 59% thought the current 3-month time limit was too short. The most common reasons were that people miss the limit as they are dealing with the trauma caused by harassment, and that the limit is incompatible with the length of internal grievance procedures. Several respondents also mentioned that the time limit is particularly insufficient in cases of pregnancy and maternity discrimination, where parents are more likely to be focused on preparing for, or caring for, a new baby, than pursuing a legal case.
When asked what any potential new time limit should be, 45% of respondents supported a new limit of 6 months, while 46% of respondents advocated for it to be longer than 6 months, some of those suggesting 12 months as an alternative.
Many of the 37% who felt that the current limit was adequate were employers or from the legal sector. The most common reasons for this stance were that the existing process for requesting an extension for out of time claims is sufficient, and that extending the limit would further delay cases.
In the public questionnaire element of the consultation, 6% of respondents cited time limits as a reason for not having taken a harassment or discrimination claim to an employment tribunal. However, there were only a small number of respondents to this question, so this may not be indicative of the scale of the issue.
On personal experience of the tribunal process, the number of respondents to the questionnaire who had knowledge of the tribunal system was small (195 respondents, 5% of the total), so their experiences could not be deemed fully representative. However, of those who had used the system, 47% said they were dissatisfied or very dissatisfied by the process. This question was deliberately asked separately to a question about satisfaction with the outcome of the tribunal.
We are understanding of the position of the majority of respondents, who advocated extending the limit, and who provided significant evidence demonstrating the positive impact this move could have. It is clear that taking this step could be beneficial not just for those bringing sexual harassment cases, but for others also, particularly pregnancy and maternity discrimination cases.
However, we also recognise that the pandemic has put additional pressure on the entire courts and tribunal service, particularly the employment tribunal service, and that restoring its existing levels of service needs to be the priority before additional loading is added. We will therefore look closely at extending the limit. In doing so, we will build on the understanding we have gained through this consultation.
What came through clearly in the responses was that, if we were to introduce an extension, we should need to do so for all Equality Act based cases. This would avoid the confusion which many employers believed would be created by increasing the limit only for specific grounds, and guarantee clarity for both individuals raising claims, and for those responding to them.
It was also clear that, if any extension were to be introduced, doing so across all claims would best ensure that the tribunal process more accurately reflects how complaints and disputes of this nature are handled within the modern workplace. Several respondents raised that the time taken to complete internal grievance procedures often extends beyond a matter of weeks, with McAllister Olivarius stating: “This is particularly true for internal investigations into allegations of sexual harassment.”
We recognise that this has increasingly left individuals being forced to choose whether to initiate the tribunal process while still being subject to an unresolved internal process, or else risk missing the 3-month limit. It is clearly preferable in most circumstances, for both employees and employers to try and reach an informal resolution, and extending the time limit could give employees sufficient time to do so. This would in no way prevent individuals from initiating the tribunal process before 6 months, but would give them the space to pursue the course of action which they thought best.
We recognise that there were concerns that extending the limit would mean that those involved would not be able to accurately remember events, and employers may not have relevant documentation. However, the time limit for equal pay is already 6 months, and these problems do not appear critical in these cases. Similarly, in most instances it is unlikely that employees will go straight to the tribunal route, but will instead attempt to resolve the case internally first. The employer would therefore be aware of the circumstances of the case ahead of any new limit, and would have gathered any relevant evidence as part of their internal resolution processes. We are therefore confident that extending the limit would not create a disproportionate burden on business, or hinder their ability to answer to cases which do go to tribunal.
However, in considering those responses which suggested a 12-month limit, we must think about the impact needing to answer a case for such a length of time would have on businesses, especially small enterprises. A limit of a year would not only significantly increase the level of employer liability, but may also start to limit the reliability with which people can recall events, and the availability of documents and witnesses that can be gathered. It is for this reason that we believe, should an extension be introduced, a new limit of 6 months would be the most appropriate course of action, striking an appropriate balance of ensuring full access to justice for those looking to bring cases, while minimising the potential negative impact on smaller enterprises.
We will continue to engage with stakeholders, including those who work in the sector, as well as those representing employee and employer groups as further work on this progresses. This will not only help improve our understanding of what impact an extended period could have on litigation behaviours, but also ensure that any new limit would be compatible with the realities of the Tribunal process.
4.5 Additional responses
In order to give respondents the opportunity to raise additional issues and ideas which they felt weren’t covered by the substantive questions and proposals within the consultation, we provided space to share any further interventions they believed the government should consider to address the problem of workplace sexual harassment.
Many respondents took the opportunity to reiterate points they had made elsewhere, with some repeating calls for employers to be required to publish their policy for handling sexual harassment. Others again raised the matter of publishing data in relation to incidents, with respondents divided as to whether this should be encouraged or avoided, due to the risk of establishing perverse incentives to drive down reporting figures.
A separate idea, which was often proposed in combination with increasing levels of data monitoring, was the creation of a naming and shaming mechanism, with comparisons made to the treatment of employers not paying the national minimum wage. While an interesting proposal, this also suffers from the same drawbacks as public data disclosures. Instead of pushing employers to create a workplace where employees feel able to speak out about incidents and report them, it could instead encourage businesses to establish an environment of secrecy where harassment is not properly investigated, for fear that they will be publicly shamed. We think that if we wish to see employers take real positive actions then we need to give them the space to create a more open workplace where reporting numbers may increase, without the fear of external consequences.
One theme which appeared in several responses was the concept that workplace sexual harassment is just one part of a wider cultural problem, with some arguing that we will only see progress within the workplace once this is tackled at a societal level. Public awareness of the issue of sexual harassment in all settings has continued to grow since the start of the #metoo movement in 2017, as has the recognition that this cannot continue, and the determination to see real change. This can only serve to increase the pressure on all employers to do everything they can to improve safety within their own workplaces.
Some respondents suggested that an external reporting body be created, so individuals could raise their cases anonymously, without having to rely on an internal reporting process. It was also proposed that this could help to identify those employers with high levels of incidents that should be further investigated. While it is important that employees have a forum where they can raise formal complaints, it is often best for all parties to first seek resolution through an internal grievance procedure. Where this process breaks down, there are already organisations, such as Acas, who are able to offer expert advice and support in these circumstances. Adding another organisation, whose purpose would be unclear, into this procedure has the potential to create further confusion, and delay individuals from being able to reach the resolution they are seeking.
Finally, several organisations called on the government to reinstate a repealed provision of the Act which enabled employment tribunals to make wider recommendations to an employer. The rationale behind repealing this provision has not changed – that employment tribunals are poorly placed to take on what is effectively the role of an equality consultant. Employers will often make changes to their policies and practices as a result of a tribunal finding anyway, without the need for wider recommendations. Ensuring that those changes are instigated by the employer means that they are more likely to be committed to, and see positive results. It also guarantees that the actions they choose to take are tailored and proportionate for the organisation, something which is harder to achieve with wider recommendations made by an employment tribunal.