Written by JMW Solicitors LLP
The Worker Protection (Amendment of Equality Act 2010) Bill previously proposed new obligations on employers to prevent sexual harassment and third-party harassment of employees. In this context, a ‘third party’ means anyone other than the employer or one of its employees.
In 2010, when the Equality Act came into force, a provision against harassment by third parties was covered but, in those days, there was a limited right to claim against the employer for third party harassment based on the ‘3 strikes’ rule. This is where employees had a right to complain if they suffered a third-party harassment incident where the employer already knew of the two previous incidents, and it had failed to take action to prevent it.
In 2013, this rule was removed which rolled back the specific protections against harassment of employees by customers, suppliers and other third parties. After this rollback, no clear protection was in place for those harassed by third parties and there was no proactive duty on the employer to try to prevent harassment until reforms in 2021.
Following the #MeToo movement and campaigning by women’s rights groups, the UK government committed, in July 2021, to impose a duty on employers to prevent sexual harassment and introduce protection against third party harassment to employees as it was highlighted that the workplace was still unsafe for women and other vulnerable groups.
Criticism of the amendments.
It still wasn’t smooth sailing for the Bill, and it ran into problems during its passage through Parliament which included campaigns by freedom of speech activists against it. The Bill attracted more controversy when it reached the House of Lords, with concerns that it would jeopardise free speech and increase the regulatory burden and burden of costs on employers if was to succeed. It would mean the Bill would make employers liable to be sued by their employees if customers or suppliers (any third parties) are rude to them which would have been outside of the employers’ control.
Following a debate in July 2023, the House of Lords agreed amendments to the two main provisions in the Bill.
Removal of third-party harassment provisions.
The part of the Bill that protected against harassment of employees by third parties has been removed in its entirety which means there will be no change to the law on employer liability for harassment by third parties.
No duty to take “all” reasonable steps to prevent sexual harassment.
Another change to the Bill is the reduced requirement in relation to employers having to take ‘reasonable steps’ rather than ‘all reasonable steps’ to prevent sexual harassment in the workplace. Concerns were raised that the word ‘all’ could encapsulate ‘almost infinite’ steps that employers could take which would not have been appropriate to enforce.
By taking away the word ‘all’ in relation to the reasonable steps employers must take to prevent sexual harassment in the workplace, it is still noted that employers must still take practical steps to prevent harassment. Enforcement of this will be via the Equality and Human Rights Commission (EHRC). Employment Tribunals also have the power to increase compensation in successful harassment claims by up to 25% where the employer has failed to take reasonable steps.
Employers will be liable even for one-off incidents of harassment, unless they can show that they took “reasonable steps”, not “all reasonable steps”, to prevent the harassment from occurring.
The updated version of the Worker Protection Bill had its third reading in the House of Lords on 12 September 2023 and no additional changes were made. The Bill will now go back to the House of Commons for consideration of amendments. It is always possible, of course, that the Commons will seek to re-introduce the third-party harassment provisions, but it is unlikely. It is very likely that the Bill will be passed in its current form and will be in full force next year.
The Bill and the proposed changes must be considered in the context of the 2010 Equality Act and the different categories of individuals who are protected against work related discrimination, harassment, and victimisation. The scope of protection is wide and covers the first protected category as ‘individuals in employment’. These individuals are employed under a contract of employment or a contract personally to do work. This goes onto encompass employees (as the Bill above makes specific reference to) and workers who contrast from employees by having a more casual and less structural relationship with their workplace and employer. Employers need to be alive to this as it means all individuals under employment may claim under the potential legislation if the employer does not make any reasonably preventative measures to protect them.
Next steps for employers.
All employers should take action to comply with the new positive obligation to prevent sexual harassment. Considering the proposed changes, employers have been advised to update their approach to harassment issues by taking practical steps such as:
- Taking complaints seriously about third party harassment and ensuring procedures are in place to prevent this. The removal of the third-party harassment clause does not mean employers are no longer liable for this. Employers will still be liable if they ignore complaints made by employees about harassment by third parties and continue to put employees at risk.
- Re-circulating and updating anti-harassment and speak-up policies. Having posters around the premises to reinforce this will show employers are taking the necessary reasonable steps.
- Updating training manuals and training schemes for staff members, explaining that threats, violence, and harassment will not be tolerated and to help employees avoid the threat of harassment as well as encouraging people to speak up if they witness harassment in the workplace.
- Promoting a zero-tolerance policy on harassment in the workplace culture.
- Even though the provision relating to third party harassment is to be removed from the legislation, it is wise to review contracts with third parties such as customers and suppliers to ensure there is an anti-harassment clause and that employees are aware of this and how to report any issues without fear of consequences.
This article is for general guidance only and should not be used for any other purpose. It does not constitute and should not be relied upon as legal advice.
If you would like to discuss this article or any recruitment issue in more detail, please contact Simon Bloch of JMW Solicitors LLP either by email at email@example.com or by telephone on 0161 838 2628.