The legal framework for discrimination and harassment could be about to change

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The UK legal framework around discrimination and harassment has come under scrutiny, as industry bodies have called for the government and employers to do more

But despite the criticism we are yet to see any legislative changes to our harassment or discrimination laws – although these might be on the way.

In July 2019 the Government Equalities Office (GEO) published a consultation on sexual harassment in the workplace.

The consultation considered the protections available for employees and what new measures should be introduced to encourage employers to prioritise preventing harassment.

Among other proposals, four headline issues were addressed as part of the consultation that HR advisors should be aware of:

  • Whether to introduce a new mandatory duty on employers to prevent workplace harassment.
  • Whether to reintroduce employer liability for third-party harassment. This would mean that employers could be liable for the acts of third parties such as suppliers, clients and customers.
  • Providing better protection for interns and volunteers.
  • Whether to extend time limits for Equality Act claims in the UK from three months to six months. As certain equality claims, such as Equal Pay Act claims, already have a six-month time limit this is not unprecedented. Victims of harassment may take some time to admit what has happened to them.

The government is considering whether there should be an 'all reasonable steps' defence to this new liability. But without clear guidance from the government and industry bodies, it's uncertain how this will work in practice and what steps employers may be expected to take.

Should the burden of bringing action against businesses shift from the individual to industry bodies?

In Summer 2019, the Women and Equalities Committee (WEC) proposed changes to the enforcement of discrimination rights under the Equality Act.

The WEC believes that the existing Equality Act protections place the burden of speaking up on individuals, which is not fit for purpose and rarely results in systemic changes across an organisation.

The WEC is proposing that the burden of enforcement against organisations shifts from individuals to industry bodies, such as the Equality and Human Rights Commission, and for tribunals to have the power to require organisational change.

What next?

The GEO consultation closed in October 2019 and we await the government’s response. We are also waiting to see how the government will respond to the WEC proposals on enforcement of discrimination claims.

If these changes are introduced they could be some of the biggest changes to HR and employment laws in this area since the introduction of the Equality Act in 2010.

However, given the nature of some of these proposals we would expect to see further consultations and discussions during 2020 before new legislation would take effect.

HR professionals should continue to be mindful of the ongoing scrutiny of the law in this area, and the call for employers to do more to tackle systemic issues within their workplace.

2020 promises to be an active year for HR and employment law advisors in this space.

Laurie Ollivent is managing practice development lawyer, employment and incentives at Linklaters

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