UK: Government response to sexual harassment report: New statutory Code of Practice and more consultation

The Government has today published its response to the Women and Equalities Select Committee report published in July of this year (see our blog post here) on sexual harassment at work.  It has noted the lack of data and research on this issue, as highlighted by the Committee, and therefore, for the most part, its response is to consult and collect more data in order to identify the most effective interventions.  However, it has agreed with the Committee that a new statutory Code of Practice should be introduced, to be developed by the Equalities and Human Rights Commission (EHRC).

The aim of the statutory Code will be to make clear to employers what actions an employer must take to fulfil their legal responsibilities, while allowing employers sufficient flexibility to adapt it to their own circumstances.  The Government is not currently intending to adopt the Committee's proposal that breach of the Code should enable tribunals to increase compensation by up to 25% (as is the case for breach of the Acas code on discipline and grievances), although it will keep this under review.

The Government considers that the introduction of a Code may be sufficient to improve employers' compliance with their existing legal responsibilities and their understanding of what amounts to "all reasonable steps" to prevent harassment, without the need for a new express mandatory duty on employers to protect workers from harassment as recommended by the Committee. However, it will consult on this proposal, to gather evidence on whether it would be an effective and useful tool to ensure prevention is prioritised and to understand its potential impact on business.

The Government has also stated that it will be consulting on:

• better regulation of non-disclosure agreements (NDAs), including the Committee's recommendation of a standard approved confidentiality clause and the best means of achieving a clear explanation to workers of the rights they cannot abrogate by signing one.  It will consult on the best means of enforcement, but is not in favour of making it a criminal offence to propose an unenforceable NDA;
• how best to strengthen and clarify the laws on third-party harassment at work;
• whether further legal protections are required for interns and volunteers; and
• extending Employment Tribunal time limits to bring workplace discrimination and harassment cases from three to six months.  The Law Commission is also consulting on a possible extension to time limits generally (until 11 January 2019).  The Government did not think the Committee's idea of pausing the countdown to allow for the conclusion of internal grievance procedures was workable and is therefore not taking that suggestion forward.

It has also committed to the following:

• working with ACAS, the EHRC and employers to raise awareness of appropriate workplace behaviours and individual rights, to include LGBT harassment;
• working with regulators "for whom sexual harassment is particularly relevant" to ensure they are taking action;
• amending whistleblowing law to make the EHRC a "prescribed person" to whom protected whistleblowing disclosures can be made, and considering whether to also add the police and additional regulators to the list in relation to disclosures of sexual harassment;
• ensuring the public sector takes action for the prevention of sexual harassment;
• considering whether it can learn from the criminal justice system to ensure vulnerable claimants have appropriate protection in the employment tribunal system (whilst noting that there are a range of protections already available at the discretion of tribunal judges); and
• gathering data on the prevalence and nature of sexual harassment at work at least every three years, with a view to launch survey questions in 2019, and exploring what data on tribunal claims can be collected.

The Government has not accepted the Committee's recommendations that tribunals be empowered to award punitive damages and required normally to award costs against an employer losing a case in which sexual harassment has been alleged.  It notes that tribunals can already award compensation for injury to feelings and aggravated damages, and its recent response following the Taylor Review (see our summary here) announced an increase to the cap on aggravated damages from £5,000 to £20,000 "as soon as Parliamentary time allows" and a requirement on tribunals to consider the use of these sanctions where there are repeated employment law breaches.

The Government has also rejected the idea of reinstating the statutory questionnaire procedure and the ability of tribunals to make wider recommendations.  It considers that the current non-statutory process for asking questions is sufficient, and that the power to make wider recommendations to employers on workplace practice will be unnecessary once the statutory Code of Practice is in place.

The Women and Equalities Committee has welcomed the Government's agreement to introduce a statutory Code, but feels it has missed an opportunity in failing to commit at this stage to a new duty on employers to protect workers from harassment and victimisation or to new sanctions for those who fail to comply with the Code.  In its view, awareness-raising is insufficient without severe penalties for employers who don't do enough to protect their staff.  The Committee has also criticised the five month delay in responding, a frustration no doubt compounded by the fact that much of the response is to announce yet more consultation.  No timetables for the consultations have been specified.  The Committee is due to report on its inquiry into the use of NDAs in other types of discrimination case in the spring.

Useful links:

• Government Press Release, December 2018
• Sexual harassment in the workplace: Government Response to the Committee's Fifth Report of Session 2017-2019, December 2018
• Women and Equalities Committee report: Sexual harassment in the workplace, July 2018
• Committee's Response, December 2018