How proposed changes to sexual harassment law may affect charities and volunteers

The government has opened a consultation on sexual harassment in the workplace and the legal protections available under the Equalities Act 2010. This has the potential to change how organisations safeguard and support not only their staff but also their volunteers. The consultation is open until 2 October so there isn’t long to have your say.

  1. Preventing harassment from happening
  2. Protecting people from harassment by third parties
  3. Extending protections to volunteers and interns
  4. Extending employment tribunal time limits

What the consultation is about

This consultation looks at whether there is more that the law could do to protect people in the workplace from sexual harassment.

The Equality Act 2010 says that employers are legally responsible if an employee is sexually harassed at work by another employee, and the employer has not taken reasonable steps to prevent this.

Despite the Act’s provisions, sexual harassment continues to be a worrying problem in workplaces across the country. The #metoo movement has drawn attention to the scale of unacceptable behaviour. The Presidents Club incident over a year ago showed how charities are unfortunately not immune from these problems.

Key issues

NCVO is clear that sexual harassment has no place in our society. The fact that the government is taking this issue seriously and is following up on the women and equalities committee inquiry into sexual harassment in the workplace is hugely positive. This consultation provides the opportunity to have a serious conversation about how we strengthen protections against sexual harassment, focusing on what changes, legal and otherwise, might help.

One major new proposal being consulted on is the inclusion of volunteers in the legislation. Volunteers should certainly receive the same level and quality of protection as paid staff. However, bringing them into the scope of this law is potentially a huge shift for the organisations that involve more than 20 million volunteers in their work in the UK.

It also raises questions about the line between the fundamental voluntary nature of volunteering and employment law. For example, to enforce this proposal, would volunteers need to have access to employment tribunals? This would be a major step for the tens of thousands of organisations that involve volunteers and are often entirely volunteer led themselves.

The consultation document (PDF, 478KB) is split over four main areas. Here are some of the things we are thinking about and that you might like to respond on too.

1. Preventing harassment from happening

The consultation proposes a new preventative duty that requires all employers to take proactive steps to protect staff (and potentially volunteers) from harassment. This would mean a shift from employer liability after the incident, to a proactive duty before any unlawful conduct has taken place.

The aim of this proposal is to make employers prioritise the prevention of sexual harassment, which we fully support. But the consultation itself asks if the same outcome can be achieved in other ways and without the need for legislation, eg by placing a duty on organisations to report on how they prevent harassment.

In either case, we’d like to know what you think the consequences for your organisation might be.

  • How might this be implemented in your organisation?
  • How else might organisations be encouraged to prevent sexual harassment?

2. Protecting people from harassment by third parties

Protecting staff from harassment by other staff members is already a part of the law. This consultation proposes extending this responsibility to include protecting staff (and potentially volunteers) from harassment by third parties, eg contractors, service users and the public.

As the consultation points out, there are a range of laws that already protect people from harassment in a variety of settings. One area we’ll be looking at is which gaps still need to be filled. We’d especially like to hear your views on the following.

  • Should harassment of staff or volunteers by third parties be covered by the act?
  • If so, which third parties?
  • How might this be implemented in your organisation?

3. Extending protections to volunteers and interns

Existing protections in the Equality Act are explicitly linked to paid workers and so do not currently cover volunteers and unpaid interns (who are legally considered volunteers).

The consultation is proposing to extend the protections of the Equality Act (not just those for sexual harassment but all the protections in Part 5 of the Equality Act) to volunteers.

Volunteers have just as much right to be free from harassment as anyone. This was also a driver for the Volunteer Rights Inquiry earlier this decade. The inquiry gave several recommendations on supporting and protecting volunteers. However, volunteers and organisations alike had strong concerns about introducing additional regulation and/or legislation. They felt that this may present more barriers to volunteering and prescribe universal action that is not proportionate to the needs of a diverse sector.

The consultation states that ‘equality law is separate to wider employment law’ and any extension to equalities legislation would ‘have no impact on volunteers’ wider rights under employment law’.

At the moment, the consultation proposals are unclear on how these rights would be enforced for volunteers.

The consultation mentions ‘potential legal action’. For paid workforces, enforcement usually happens in employment tribunals. This naturally comes with a raft of further employment-based processes. While it is important that volunteers can give their time free from harassment, we are concerned about the risk of changing the nature of volunteering to that of employment.

The consultation suggests creating two legal categories of volunteering where only volunteers at larger organisations or in formal roles would be covered by the law.

This could devalue volunteers in smaller charities or those giving time in informal ways. Not only could this be a confusing distinction, it also creates an incentive to avoid the legal issues of creating more formal roles.

Everyone, whether staff or volunteers, deserves the strongest protection from sexual harassment. However, we also need to think about what these proposals would mean for charities. At the moment, the extent of the liability is not clear. Would large charities be liable for a casual or one-off time volunteer’s actions when supporting the charity, eg undertaking a bucket collection or doing a charity run?

Tell us what you think.

  • Which volunteers/supporters should be included?
  • How might this be implemented in your organisation?
  • Should all protections in the act be extended to volunteers?
  • How might this impact the legal status of volunteers?

4. Extending employment tribunal time limits

Harassment often involves an imbalance or abuse of power and can have a lasting emotional impact on victims. It can therefore take a victim a significant amount of time to recover and build the confidence to make a claim. The consultation therefore proposes that the time limit for making an employment tribunal claim (usually three months) be extended in cases of sexual harassment. This would have consequences for charities as employers.

  • Do you agree that the current three-month time limit should be extended?
  • Should this include volunteers’ access to tribunals?

How to respond

The government is asking organisations to respond to the detailed elements in their Legal protections under the Equality Act 2010 document (PDF, 478KB).

You can find details about how to respond on the government’s consultation page.

NCVO will also be responding and we’d like to hear your views. Please look at the consultation document and points above, and email your views to us at policy@ncvo.org.uk by Monday 23 September. We’ll combine your feedback with legal input and discussions with our partner organisations.

If you have staff or volunteers who want to respond directly, there is also a survey for individuals’ responses. This is mainly for those who have been affected by sexual harassment or discrimination in the workplace, or managed those who have.

You may also be interested in reviewing NCVO’s Charity Ethical Principles to help you consider how to deal with ethical dilemmas in your organisation.

 

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Shaun Delaney Shaun is volunteering development manager at NCVO, overseeing strategy for volunteer management and good practice. Previously, he was head of volunteering at Samaritans and is currently a volunteer trustee of Greater London Volunteering.

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