The UK Government is supporting the Worker Protection (Amendment of Equality Act 2010) Bill to significantly expand employers' liability for harassment in the workplace.
If it becomes law, the bill would mean employers could be liable for harassment of employees by third parties, such as customers and clients. Secondly, it would place a positive duty on employers to prevent sexual harassment of employees.
Liability for harassment of employee by third parties
If enacted as it is currently drafted, an employee who is harassed by a third party in the course of employment would be able to claim for this against their employer. This is a return to the law as it was in 2013 but goes a step further.
Under the 2013 rule employers needed to know about two previous incidents of harassment before they were liable. Whereas under this bill employers would be liable after only one incident, unless they can show they took all reasonable steps to prevent the harassment taking place.
It's worth mentioning that this relates to harassment on any protected ground, not just sexual harassment.
Positive duty to prevent sexual harassment
Currently employers are liable for harassment (and discrimination) carried out by their employers in the course of their employment unless they can show they took all reasonable steps to prevent the harassment taking place. This bill goes beyond this and would place a positive duty on all employers to prevent sexual harassment.
Based on how the bill is currently drafted this wouldn't be a standalone right but would be enforced by the Equality and Human Rights Commission (EHRC).
However, if a Tribunal found that an employee had been harassed and this duty had not been complied with it would also have the power to award up to 25% more compensation.
Prevalence of harassment
This bill comes in the wake of evidence which suggests that even five years after the #metoo campaign, such behaviour remains more widespread in many workplaces than might be expected.
- Randstad's 2022 Gender Equality in the Workplace report, which surveyed 6,000 working adults across the construction, education, healthcare and technology sectors, found that 72% of women had either encountered or witnessed inappropriate behaviour from male colleagues at work.
- This 2019 government consultation found that 54% of respondents had themselves experienced sexual harassment at work.
- We will need to watch this space to see if these changes will be enacted. The government first trialled bringing in these additional protections last year in response to the results of the 2019 government consultation. Moreover, the second reading of this bill has just passed meaning there is a long way to go before it can become law.
- If it does become law, the EHRC would produce a Code of Practice to explain the steps employers should take to comply with these new duties.
- In the meantime, employers can have a full defence to claims of unlawful harassment if they can show they took all reasonable steps to prevent the discrimination happening. This typically includes having and implementing appropriate policies and ensuring staff receive anti-discrimination training. A recent case has made clear that to be able to rely on this defence, the training should be thorough (not brief or superficial), it should be regularly delivered and refreshed if particular issues arise.
*Stanley Marginson is the client training assistant at GQ|Littler.
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