Since the start of the #metoo movement, awareness of workplace sexual harassment has grown. As stark revelations of sexual harassment continued to surface, the government made a commitment back in 2021 to strengthen protections for victims of harassment at work.
The
Worker Protection (Amendment of Equality Act 2010) Bill seeks to do just that. And, having already made its way through the House of Commons, we could see new laws being introduced as early as next year.
A brief history of third-party liability
Liability for harassment caused by third parties in the workplace was previously dealt with by section 40 of the Equality Act 2010. It applied a ‘three strikes’ rule – an employer was not liable unless it knew that the employee had already been harassed on two previous occasions.
However, it was repealed in 2013 after employers said it was ‘
confusing and unnecessary’, giving rise to liability only where employees harass other employees and employers can’t show that they took ‘all reasonable steps’ to prevent it. This re-exposed a gap in the law that the government committed to close.
Déjà vu? Reintroducing liability for harassment by third parties
Under a new law working its way through Parliament, employers could once again be liable for the harassment of their employees by third parties. This time, however, the circumstances in which an employer could be liable would be expanded.
Importantly, there would be no need for two prior incidents to have occurred. An employer would be liable from strike one if they failed to take all reasonable steps to prevent the third party from harassing the employee. There would also be no need for the employer to have knowledge of it.
However, concerns over the way the draft law was worded (that it could inadvertently curtail free speech and oblige employers to shut down controversial conversations) led to a late amendment in January 2023.
The amendment seeks to carve out legitimate expressions of opinions on political, moral, religious or social matters. Where certain conditions are all met (and this is likely to be a high bar for employers), employers would
not be expected to prevent the expression of opinions to avoid liability for (non-sexual) workplace harassment.
This exception is limited to overheard conversations or speeches that are not made directly to the individual providing the opinion ‘is not indecent or grossly offensive’, although it is not clear what the threshold will be for this. This results in an unusual distinction where if the same ‘controversial’ conversation was had in a group in which the individual was a participant, liability could follow.
As drafted, this would apply to harassment by co-workers and by third parties.
New duty to prevent sexual harassment of employees
In a shift in focus from redress to prevention, the Bill also introduces a new duty on employers to take all reasonable steps to prevent sexual harassment of its employees. Breach of this duty would open the door to the Employment Tribunal potentially ordering an uplift in compensation.
Many employers will already be familiar with the
reasonable steps concept when it comes to avoiding liability in discrimination claims. And whilst establishing that all reasonable steps have been taken is a high threshold, it is not expected that the new law will require employers to do anything substantially more than a prudent employer is already doing to prevent workplace discrimination.
Comprehensive policies and procedures and high quality and regular training will be key, with the size and resources available to the employer influencing the determination of what is reasonable.
A new Code of Practice will be published following consultation to provide further guidance on this.
Next steps
As the Bill continues its legislative journey, employers may wish to consider reviewing relevant policies and processes to ensure they are robust and up to date.
Whilst employers will often rely on training and policies as reasonable steps taken to combat discrimination by fellow employees, they will clearly have less control over third parties’ actions. Employers could therefore reflect on whether any preventative steps targeted at third parties should be put in place such as displaying zero-tolerance notices, inserting terms in supplier contracts requiring compliance with anti-harassment policies, and introducing penalties for third parties who harass employees.