The recent comprehensive inquiry into workplace sexual harassment by the Women and Equalities Select Committee identified the limitations of the existing duty of care, citing an: “epidemic of inaction and poor practice” amongst employers that “demonstrates that employers are currently not taking this issue seriously, and that they are not adequately incentivized to take action on sexual harassment in the workplace.”
In contrast, a new preventative duty would drive systemic cultural change at an organizational level ensuring employers take responsibility for prioritizing the prevention of workplace sexual harassment.
The TUC strongly agrees with the government’s proposal to implement a new preventative duty that will require employers to take all reasonable steps to prevent sexual harassment in the workplace. It is an opportunity for the government to strengthen workers’ rights, provide much needed clarity for employers and create the wide-spread, systemic cultural change we need to rid our workplaces of sexual harassment, which has the potential to blight working lives and damage the mental and physical health of workers.
The new duty should capture and strengthen existing obligations in relation to the reasonable steps defense currently contained within section 109.4 of the Equality Act. S. 109 sets out the principle of vicarious liability where an act of discrimination is committed in the course of employment and provides for a potential defense for an employer where they can show they have taken reasonable steps to prevent the act of discrimination (including an act of harassment).
The new preventative duty should strengthen the obligation in relation to the reasonable steps defense by focusing explicitly and solely on sexual harassment. At present, the reasonable steps defense as set out in S. 109 of the Equality Act does not make specific reference to sexual harassment and guidance tends to outline only generic workplace equality and anti-harassment steps. This is insufficient to focus employers’ attention on sexual harassment.
As the government propose, existing primary legislation – the Equality Act 2010 – should be amended to make provision for this new preventative duty.
All workers should be protected from sexual harassment and victimization regardless of employment status – whether they have a contract of employment or similar contract for services. Therefore, the TUC recommends the government expand the scope of the preventative duty to include workers currently not covered by provisions within the Equality Act 2010. This includes but is not limited to the genuinely self-employed, freelancers or those employed on a short-term basis such as musicians, actors or comedians, and volunteers and interns.