Sexual harassment is absolutely no laughing matter, but it is difficult to suppress a tired smile when reading the government’s Response to its 2019 consultation on harassment in the workplace.  This is very heavy on prospective voter-appeal but rather lighter (weightless, basically) on the practicalities.

We shall impose a proactive duty on employers to prevent harassment, it says earnestly , and we shall make them liable for harassment of their staff by third parties, in each case unless they have taken “all reasonable steps” to prevent that sort of thing happening.  You will probably recognise this “all reasonable steps” phrasing as a straight lift from the existing statutory defence in Section 109(4) Equality Act, which allows an employer to escape liability for the harassing conduct of its employees towards each other if it can show that it had taken all reasonable steps to prevent it.

It is clear that some work has gone into the government’s Response.  There are many fewer spelling errors than usual, for example, and only a small part of the Ministerial Foreword is repeated in the Introduction immediately underneath it. However, it is also glaringly apparent that all that work has yet to lead to any concrete proposals as to how those two main recommendations could realistically be made to work in practice.

First, the creation of a proactive duty.  Some survey respondents suggested in 2019 that a default on this should be enforceable by staff as a failure even if there had not actually been any harassment, or in other words, that employees should be permitted to claim compensation for the employer’s failure to take adequate steps to prevent harassment which hadn’t happened.  Mercifully that didn’t make the cut in the Response, so as matters stand an employee will only be able claim breach of that duty if they have been the victim of harassment, much as at present.  However, the Equality and Human Rights Commission can bring an action even without harassment taking place first, in much the same way that the Health and Safety Executive can take enforcement action in relation to a risk in the workplace which has not yet turned into an accident.  The obvious weakness in that comparison, however, is that a health and safety risk is generally the product of a specific physical arrangement of premises or machinery or industrial processes which can be corrected, while all that is required to generate a risk of sexual harassment is other people.  The expectation will have to be that the EHRC’s intervention would not lead immediately to a money penalty but instead to an order or recommendation that the employer takes specified steps to bring its suite of protections against harassment up to scratch, such as doing some training or giving more prominence to existing policies. If it did not do so and then lost a harassment claim, that failure could presumably lead to significantly increased compensation. Still , no detail yet so we will have to see.

The government’s concession in the response that an action to enforce that duty would only lie for an employee once harassment had taken place effectively neuters the new provision from the perspective of the individual harassment claimant.  Whether with it or without it, the employer will be liable for that harassment unless it has taken all reasonable steps in advance to stop it.

As to making employers liable for harassment by third parties, we have been this way before.  The original version of the Equality Act contained a similar provision which was repealed in 2013, in part because it was completely unworkable in practice.  It will be interesting to see if and how those issues are circumvented this time around.  Don’t hold your breath for this – the promise is to legislate “when parliamentary time allows” so cynics will be given for not expecting this until shortly before the next election.

Still outstanding on this front, says the Response, is the question of whether employers would be liable for a failure to take all reasonable steps even if there has yet to be any actual incident of harassment by a third party. It is hard to think so given the position above in relation to in-house harassment. However,  the original version only made the employer liable if it failed to take such steps after three such incidents, and there was apparently no support for that approach this time around either.

The government’s catch-all solution is the “all reasonable steps defence”, which it says “is both flexible and allows for proportionality“. That is obviously lovely, but the problem with it is that whether all such steps have been taken will inevitably be judged in hindsight after an act of harassment has taken place.  That means that by definition, whatever steps you took as employer weren’t up to the job.  As a result, it is far less likely that an ET would find that those steps were in fact all those that were reasonable.  Bear in mind that Section 109(4) requires the taking of all reasonable steps, not just some such steps, or only those which might realistically have any impact or which won’t really get up the nose of those confronted with them.  If there are 10 such steps you could take and you diligently implement nine of them (the 10th perhaps not occurring to you at all), then you haven’t taken all reasonable steps and so despite all your efforts, will lose.

More particularly, the problem with creating new legal obligations in the workplace is of course that they are generally closely followed by someone who alleges breach of them and then seeks protection as a whistle-blower. The vaguer the actual requirements of the law, the easier it is to allege a genuine belief that it hasn’t been followed, especially given that what appears practicable to the employee may not to the employer, etc. So it will be very easy to say as employee (quite without the need for evidence in the form of any actual harassment) that a particular piece of training wasn’t up to scratch or that the Equal Opps policy misses out some obscure piece of the legal picture that no-one has else ever thought twice about (see below) and therefore that in your view, not all reasonable steps have been taken. If the duty becomes proactive, the complainant won’t even need to say that what he/she proposes would actually make any difference, since that Is not the test of what is practicable. No-one will argue that preventing harassment isn’t reasonably believed to be in the public interest, so immediately you are off to the races.

Unsurprisingly, employer respondents to the original consultation paper in 2019 therefore sought a more or less definitive statement of what they would have to do in order to keep themselves compliant with a proactive duty of this sort, a not unreasonable requirement of a bit of law, one might think.  That principle has been both accepted and rejected in this Response in about equal measure.  Accepted, in the government’s promise to issue clear and accessible guidance, but then rejected via its refusal to provide any exhaustive list in case it leads to 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”.  In other words, on its face, we cannot tell you in detail what you need to do in case you then just do it.

This is actually somewhat less perverse than it sounds.  It recognises that some working environments put employees at greater risk of sexual harassment than others – the Response cites hospitality as a particular problem area – and also that factors such as staff turnover may quickly erode the value of staff training.  Existing EHRC guidance indicates that what counts as “all reasonable steps” may be affected by past experience, such that the obvious ineffectiveness in practice of prior steps is a good pointer to your needing to do something more.  Recent case law such as this one has shone a bright and uncomfortable light onto how you can have a policy and training and still fail if it isn’t accurate or recent enough. These new rules, being inevitably very generic in nature, will place a particular premium on your polishing up obvious indicators of that sort.

The clear thrust of Section 109(4) and its proposed new siblings is that these are steps which must be taken before the conduct in question takes place.  However, the EHRC code also includes as a reasonable step “dealing effectively with employee complaints“.  That won’t count as a reasonable step in relation to the harassment which just happened, but it could well do so in the next case, if you get it right.  It probably has two components – treatment of the complainant (whether the allegations are ultimately upheld or not) and, if they are, treatment of the perpetrator. A failure against either will be taken as undermining your anti-harassments stance. Obviously you cannot really discipline or dismiss a member of the public or the employee of a client or customer, but extrapolation from that provision in the EHRC code suggests that you could and should certainly think about barring them from your premises, seeking an apology and/or dropping a line to their employer where their identity is known.

Exactly what you do will have to depend on the circumstances in which your employees have business dealings with third parties in the course of their employment, both within and outside your workplace.  None of the other “reasonable steps” suggested by the EHRC code (have a policy, keep it under review, make staff aware of it, do some training) really work when applied to third parties.  So what might we see as reasonable steps in those cases?  How about some of these:-

many more of those notices in public areas of workplaces that “our staff are entitled to work without harassment”;
terms in contracts requiring suppliers of contractors or other labour who will come onto your premises to have given them equal opportunities training first;
more robust treatment of serial offenders through suspension of supply or service (at its most basic, for example, barring someone from your pub or restaurant);
with or without (ii), more comprehensive induction procedures for individual contractors and suppliers;
a requirement for a signature from visitors acknowledging receipt at your Reception of a very short notice to the effect of (i) above, or at least one of those little give-out cards of the sort you might normally use for telling visitors about the fire precautions;
clarification to your employees of proper channels specifically for the reporting of harassment by third parties, and training for managers on how to deal with such allegations; and
hopefully, the final extinction of any suggestion by businesses that clients should be allowed to get a little frisky with your staff if it means that you will win/keep their business.
Employment Law Worldview