Workplace harassment (particularly sexual harassment) has been high on the agenda in recent years. The upcoming Employment Rights Bill is set to strengthen employers’ duties in this area as follows:
A stronger preventative duty for employers
Under the Equality Act 2010, an employer can defend a claim of harassment by showing it took ‘all reasonable steps’ to prevent the harassment. In October 2024, a new law (The Worker Protection Act 2024) introduced a proactive duty on employers to take reasonable steps to prevent sexual harassment. The Employment Rights Bill goes further by requiring employers to take all reasonable steps to prevent any form of unlawful harassment (not just sexual). The word ‘all’ raises the bar and implies a more stringent obligation. It is not enough for an employer to do something; it must do everything that is reasonably in its power to stop harassment before it happens.
Liability for third-party harassment
The Bill also makes employers liable if a third party, such as a customer, contractor or client, harasses their staff if the employer failed to take all reasonable steps to prevent it. This new provision explicitly covers all types of harassment by third parties (not just sexual). The employer has a defence if it can show it took all reasonable steps to prevent it. This means that employers must be proactive in protecting staff from harassment, not just by other employees, but by anyone they interact with through work.
Whistleblowing protection
The Bill also provides that if an employee discloses information about sexual harassment, this counts as a ‘protected disclosure’ (ie whistleblowing). This means that if an employee raises a concern or complaint about sexual harassment, they gain whistleblower protections so they must not be subjected to any detriment or dismissal for having done so.
What should employers be doing to prepare?
The new legislation under the Employment Rights Bill is expected to be introduced in stages, later this year and next year. To ensure they are taking ‘all reasonable steps’, employers should be preparing now:
- Refresh harassment policies: Review and update anti-harassment policies to ensure they explicitly cover how harassment can be reported and how it will be dealt with, including third-party harassment. Ensure all staff have access to and have read the polices.
- Implement Regular Training of staff: Arrange training for employees on what is acceptable behaviour and what to do if they experience or witness any form of harassment. Ensure managers are trained in how to handle complaints sensitively and promptly.
- Monitoring and workplace culture: Make it clear that harassment of any kind will not be tolerated. Ensure clear mechanisms and multiple channels are in place for reporting and emphasise no retaliation. Undertake proactive measures such as periodic anonymous surveys about workplace culture.
- Third party harassment plan: Ensure policies specifically include third-party harassment, including how reports will be dealt with and investigated and how third-party offenders will be dealt with.
Of course this isn’t just about compliance, it is about good employee relations and workplace culture. A workplace that is proactive against harassment is likely to be one where employees feel safe and valued.
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