The response comprises “a package of 12 announcements” aimed at tackling sexual harassment at work. The key proposals are:
- the confirmation that there will be a statutory code of practice on sexual harassment
- the Government’s agreement that sexual harassment should be taken into account by regulators in assessing Fitness & Propriety (or equivalent), and
- proposals for future consultation on Non-Disclosure Agreements, a potential positive statutory duty on employers to prevent harassment, and potential extension of Tribunal time limits for relevant claims to six months.
The Government is said to be “developing next steps on this package” - precise timing on most points remains to be confirmed.
What the proposals say
The proposals are in two tiers: steps the Government considers should be taken; and a number it intends to consult further on to ensure the most effective approach in practice.
Proposals of interest not being taken forward from the original Report include reintroduction of the statutory questionnaire process, punitive damages and presumption that if an employer loses a sexual harassment claim it should bear the employee’s costs.
The proposals the Government agrees should be taken forward include:
- Introduction of a new statutory code of practice on sexual harassment (to be developed by the EHRC) “so employers better understand their legal responsibilities to protect their staff”. There are no additional consequences for breach at present.
- Work with regulators to ensure they are taking appropriate action. Interestingly, the Government agrees in the response that sexual harassment should be taken into account in assessing Fitness & Propriety (or equivalent).
- Awareness raising work with ACAS, the EHRC and employers on appropriate workplace behaviours and individual rights.
- Considering whether further learnings from the criminal justice system can be used in the employment tribunal system, to ensure vulnerable claimants have appropriate protection.
- Review the list of prescribed bodies for whistleblowing to ensure it includes the right bodies - in particular to consider adding the police to the list although the Government flags this needs careful consideration.
- Commission a survey to gather regular data (at least every three years starting in 2019) on the prevalence of sexual harassment (lack of data is recognised as a barrier to action).
- Increase in aggravated breach penalty from £5,000 to £20,000.
The proposals for further consultation concern:
- non-disclosure agreements (the deadline for written submissions to the WEC’s current enquiry has been extended to 31 January 2019)
- a potential new legal duty on employers to prevent sexual harassment in the workplace
- how best to strengthen and clarify laws on third party harassment in the workplace
- whether further legal protections are required for interns and volunteers, and
- possibly extending employment tribunal time limits for Equality Act 2010 cases from three to six months.
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