New legislation is set to place greater responsibility on organisations to protect employees against harassment, including sexual harassment. This is a welcomed increase in protection for employees, particularly within sectors such as hospitality, retail and education where harassment is affected by issues such as power imbalances, lone working and interaction with members of the public.
Employers are being urged to act in readiness, with the proposed legislation set for its third reading this month and expected to become law during the next year.
Harassment in the workplace is prohibited under the Equality Act 2010 and once passed, the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 will extend the range of safeguards for employees. The employer may be held liable if they fail “to take all reasonable steps to prevent the third party from doing so”.
The Bill also tackles sexual harassment suffered by employees in the course of their employment, by placing a new duty on employers to take all reasonable steps to prevent such harassment. While harassment can happen in any workplace, there are factors specific to certain sectors that increase employees’ exposure to sexual harassment; in particular factors such as low-skilled or untrained management, the regular interactions with members of the public and working in environments where alcohol is consumed are all likely to affect incidence levels.
While the Bill is still going through parliament, employers should be gearing up in readiness, and ensuring the right processes are in place.
The benchmark is likely to be high, to encourage employers to be proactive in tackling discrimination in the workplace. While the term “all reasonable steps” is not defined by statute, we know from existing case law what is expected of an employer. Any tribunal will be looking for robust policies and evidence of steps taken to actively prevent harassment that are tailored to the specific environment as well as conscious of general principles.
It all adds up to a tough new round of legislation for employers. The harassment by third parties can relate to someone over whom the employer has no direct control, with liability set to apply whether or not the employer is aware of the actions of the third party. The penalty will be higher where the employer is found to have breached their duty for any sexual harassment claim, as an uplift of up to 25% of the compensation award is currently proposed to be added on.
For advice on how to avoid harassment in the workplace, please do not hesitate to contact a member of our employment team.
