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Back in 2019, the Government consulted on whether there should be a duty on employers to prevent the sexual harassment of their employees, and this was met with support.
In July 2021, the Government responded to the results of that consultation by announcing that it would create employment laws to introduce such a duty “as soon as parliamentary time allowed”.
It seems that that time is now as a result of a private member’s bill – the Worker Protection (Amendment of Equality Act 2010) Bill - which is currently being supported by the Government and, if enacted as drafted, would significantly increase employers’ responsibilities concerning harassment.
This article outlines the key changes in that Bill and what employers can do to prepare for them.
Liability for harassment by third parties
Some employers may be aware of the previous provision in the Equality Act 2010, which permitted employers to be liable for the harassment of their employees by third parties when the harassment occurred on at least two previous occasions and if the employer had been aware that the harassment had taken place and had not taken reasonable steps to prevent it happening again.
These provisions were repealed in October 2013 as it was proposed that they had been introduced without any real or perceived need.
If passed, the new Bill will reintroduce employer liability for the harassment of employees by third parties where the third party harasses the employee (not just sexual harassment) in the course of their employment, and the employer failed to take all reasonable steps to prevent the third party from doing so.
Unlike the previous provision, there is no requirement in the Bill for there to have been previous occurrences of harassment before an employer becomes liable.
The definition of a third party is drafted very widely and is someone other than the employer or one of its employees. This could mean that the employer could be responsible for any client, customers, contractors or suppliers.
A new duty to prevent sexual harassment of employees
Complaints of sexual harassment can lead to costly settlements, high-profile departures of senior management, expensive litigation, loss of productivity, damage to reputation, an adverse effect on employee and customer relations and even steep declines in share prices.
Taking appropriate steps to prevent sexual harassment in the workplace is therefore important for all employees, from a business perspective and a legal one.
The Bill will require employers to take all reasonable steps to prevent sexual harassment of employees during their employment.
If an employer fails to comply with this duty, it is said that they could face enforcement action from the Equality and Human Rights Commission (EHRC). It’s not entirely clear what such action will be, but it’s expected this could include investigations or litigation.
In addition, where an employee successfully brings a sexual harassment claim, and a Tribunal finds that the employer has breached its duty, it may order that the compensation payable by the employer is increased by up to 25%.
No liability for expression of certain opinions
The Bill will make amendments to the Equality Act 2010 to provide that an employer will not be considered to have failed to take all reasonable steps to prevent harassment of an employee by another employee or by a third party solely because it does not seek to prevent the expression of opinion in conversations where:
- It is not the conduct of a sexual nature.
- The employee harassed is not a participant to the conversation, or the speech was not aimed specifically at that employee.
- The conversation or speech involves the expression of an opinion on a political, moral, religious or social matter.
- The opinion expressed is not indecent or grossly offensive.
- The expression of the opinion does not have the purpose of violating an employee’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee.
What's next for employers?
The Bill is currently at the committee stage in the House of Lords. Assuming the Bill is passed, it would become law a year after it receives Royal Assent. Assuming the Bill is passed, it would become law a year after it receives Royal Assent.
It is expected that a statutory code of practice will be produced by the EHRC, which will provide important guidance for employers.
In the meantime, employers who wish to prepare for the changes should consider the following:
- Check your policies – do you have appropriate anti-harassment policies in place that are clear and understandable? Do you keep these under regular review? Do you make staff aware of the policies and that they are followed?
- Check your culture – do you have a workplace culture of zero tolerance to harassment, and are employees encouraged to report inappropriate behaviour?
- Check your contractual terms and how you work with third parties – do the terms, and your working relationships make clear your expectations of behaviour, and what happens if these are breached?
- Provide regular training – it’s not enough to simply say you have the training to rely on a reasonable steps defence. Is the training thorough? Is there specific training targeted to managers in dealing with complaints of harassment? Is it delivered regularly and refreshed if particular issues arise?
- Monitor – do you have nominated employees to monitor harassment issues and support victims of harassment? Do you have a process for settlement agreements in sexual harassment claims to be signed off or reviewed at board level?