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New duty to prevent sexual harassment likely to become law

Workplace harassement

Update: The Worker Protection (Amendment of Equality Act 2010) Bill

Two controversial amendments to the Worker Protection Bill, were recently passed by the House of Lords on 14 July 2023. As we’ve previously discussed, the Worker Protection Bill was introduced to protect employees from (sexual) harassment. However, the overhaul of the law of harassment is now likely to be less far-reaching than anticipated, as proposals to re-introduce employer liability for third-party harassment have been dropped entirely, and the new duty on employers to prevent sexual harassment has been watered-down. We look at what this means for employers and the reasons behind these changes.

New duty on employees to prevent sexual harassment changes from “all reasonable steps” to “reasonable steps”

The Bill, if enacted, will require an employer to take “reasonable steps” rather than “all reasonable steps” (as previously proposed) to prevent sexual harassment of their employees in the course of employment (under a new subsection 40A EqA 2010). This will create a new legal test for employers to comply with, different from the existing “all reasonable steps” defence under section 109(4) EqA 2010 (see below). To help employers comply with this new duty, a statutory code of practice on workplace harassment is due to be published by the Equality and Human Rights Commission (“EHRC”) when this Bill is passed.

As a result of this change, employers will find it easier to show that they have complied with the new positive duty now that the word “all” has been removed. This is particularly important given the financial risk associated with non-compliance under new associated provisions being brought in by this Bill. These include:

  • Where a claim of sexual harassment has been upheld and the employer is found to have breached the preventative duty, an employment tribunal could, if enacted, award a compensation uplift of up to 25% for this type of claim.
  • Note, standalone breaches of this duty will otherwise only be enforceable by the EHRC. Employers will want to avoid EHRC investigations in any event given the possible reputational damage.

This change will mostly affect companies which are not currently taking any steps to prevent sexual harassment.

What does this change in the law mean for employers?

In anticipation of this change, employers should consider whether:

  • you take a zero-tolerance approach to harassment workplace?
  • you have an effective and current anti-harassment policy and procedure?
  • you have any reporting mechanisms for harassment behaviour?
  • the managers in your company are trained to deal with complaints of harassment?
  • you provide any anti-harassment training to employees?
  • you have a workplace champion?

Employer liability for third party harassment dropped

Currently, an employer may be liable where an employee has harassed another employee (under section 40 EqA 2010). However, an employer may avoid vicarious liability where it is able to show that it has taken all reasonable steps to prevent the employee from engaging in the harassment (section 109(4) EqA 2010).

When the EqA 2010 was originally enacted, employers could also have been liable in instances where a third party had harassed an employee under a ‘three-strikes’ rule, meaning the employee needed to be the subject of three separate incidents of harassment by a third party. The employer had to have known about the harassment and failed to prevent it. These provisions contained within section 40 EqA 2010 were repealed by the Coalition government in 2013, as just two cases had been brought in the employment tribunal.

The position since 2013 has been that an employer could only be held liable for third party harassment as a result of its own discrimination; for example, where a male employee has been harassed by a client, makes a complaint to his employer and this is ignored, whereas had the complaint been made by a woman, the employer would have dealt with the complaint differently.

However, to protect employees from harassment in the workplace further, the Bill made provisions to make an employer liable where a third party had harassed an employee in the course of their employment; and the employer failed to take all reasonable steps to prevent that harassment (under new subsections to section 40 EqA 2010).

Importantly, employees would not just be protected against sexual harassment by third parties, but all forms of harassment (those relating to protected characterises defined in section 26(1) EqA 2010). With the exceptionally wide definition of third parties (anyone other than a fellow employee or employer), this protection against harassment included virtually anyone.

In practice, the proposals to make employers liable for actions of their customers and clients concerned law-makers, particularly as there was no ‘three-strikes’ rule element being introduced and the measures employers would need to take would be considerable, adding to the regulatory burden and cost of running a business. Mindful of this, the government introduced amendments to ensure that employers, by way of example, would not be liable for indirect harassment, i.e. something that an employee had overheard, or something that concerns a “political, moral, religious or social” matter.

Lord Jackson raised concerns about the “pernicious and consequential chilling effect on free speech” and commented that while “we all deprecate incivility, discrimination and sexual and other harassment”, legislating against such behaviour in this way “was not the right vehicle for addressing those very significant societal issues”. While this change to the Bill may be a significant win for employers, it may not be the last we hear on the subject. Baroness Thornton remarked at the end of the debate that she could not promise a future Labour Government would not seek to return to this matter.

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