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Consent is irrelevant: Sexual assault in the workplace

As many as one in five adults in Britain have experienced some form of sexual harassment at work. What steps should employers be taking?

Football international Jenni Hermoso being kissed by Luis Rubiales

Most of us will have read about, or even seen, the unsettling live images of the now former Head of the Spanish FA Luis Rubiales kissing Spanish football international Jennifer Hermoso on the lips following Spain’s World Cup win last month.

And last weekend very serious allegations (as yet unproven) of historic sexual assault levelled against Russell Brand, in what is the latest instance in a depressingly and unacceptable long list of sexual harassment and assaults which many women have historically been subjected to in the workplace. #MeToo still matters.

Both Russell Brand and Luis Rubiales maintain that their actions were consensual, and these arguments will be tested in due course in the UK and Spanish Criminal Courts (and possibly, in Brand’s case also the US, on the back of other high-profile sentencing for US actor Danny Masterson and Harvey Weinstein).  However, from a civil, and employment law perspective, whether or not their actions were consented to is essentially an irrelevance.

In 2021, the Government undertook a comprehensive consultation of employers and supporting organisations and looked at the question of what steps employers could take to prevent sexual harassment happening in their workplaces. As many as one in five adults in Britain have experienced some form of sexual harassment at work, according to an Opinium survey.

The Government responded to the findings by saying is that it intended to introduce a new duty on employers to proactively take steps to prevent harassment and suggested various initiatives to support the Equality and Human Rights Commission (the “EHRC”) in developing a statutory code of practice to complement the guidance published by the EHRC back in January 2020. The Government promised to publish  accessible guidance for employers to outline the practical steps that employers and organisations can take. Although this is yet to happen, the main points for consideration were:

  • the introduction of a mandatory duty on employers to protect workers from harassment and victimisation in the workplace (before a complaint is brought as opposed to reacting after the event);
  • how best to strengthen and clarify the existing laws in relation to third-party harassment;
  • whether interns were adequately protected by the Equality Act 2010 and whether to extend the protections to volunteers.
  • the views of stakeholders on extending employment tribunal time limits in the Act from the existing 3-month time limit to a suggested new limit of 6 months, as is already in place with Equal Pay claims.

Regrettably, the Government has dragged its feet on these pledges, addressing the numerous attempts by various third parties to water down these much-needed protections. However, we know changes are imminent, possibly all the more so as a result of these high-profile cases rightly pushing these questions back on the deadlines and to the top of the agenda once more.

Employers may want to start getting an overview of their current policies and procedures both in response to, and in preparation for, what we hope will be changes which may now finally happen, and most importantly of all, to ensure that employees, workers, consultants, volunteers, third parties and everybody are best protected.

For further information on what you can do to support your team, contact us for up-to-date and practical advice on workplace policies and putting good practice into place.

This article was written by Omar Qassim

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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