The Government's commitment to impose a new duty on employers to take "all reasonable steps" to prevent harassment in the workplace marks a new departure in discrimination law. In the public sector, the new duty is likely to overlap with the existing public sector equality duties set out in the 2010 Equality Act, but so far no positive, preventative duties have been imposed on private employers in this area.
The plans for a new duty, which were published in late July, emerged from a 2019 consultation, in turn a response to the pressure for change generated by the #metoo movement. We believe the new duty will apply not only to sexual harassment but to all other harassment prohibited by the Equality Act.
The Government is also planning to legislate to clarify the extent of an employer's obligations in relation to harassment of its staff by people who are not employed by it (known as "third-party harassment").
Best practice already requires employers to take steps to eliminate harassment (and indeed all other kinds of discrimination) from the workplace. However, at present, they cannot be made legally liable for failing to do this, unless an individual employee who has experienced workplace harassment brings a claim in the employment tribunal. When faced with such a claim, an employer will be liable for any harassment committed by its employees, unless it can show it took "all reasonable steps" to prevent it.
The Government is now planning to introduce a duty to take these steps as a preventative measure, to supplement the indirect incentive provided by the existing defence. To help employers comply with this duty, there will be a new statutory code of practice, plus supplemental guidance for employers to complement it. In addition, rather than leaving it to individuals to enforce compliance, it is planning to give the Equality and Human Rights Commission enforcement powers, although the extent of these is not yet clear.
There is already a powerful incentive to ensure that workplaces are welcoming and inclusive, but the prospect of further legislation in the pipeline should motivate employers to review and if necessary enhance the preventative measures already in place.
For more information about the Government's plans, see this blog posting here.
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