Changes to draft legislation on protection from sexual harassment

15th September 2023 The “Me Too” movement and various high-profile cases of sexual harassment brought the subject of sexual harassment and the scale of sexual harassment in the workplace to public attention. A private members Bill, the Workers Protection (Amendment of Equality Act 2010) Bill was subsequently introduced in Parliament. That Bill received broad support from the Government and has been progressing through the various stages of procedure on the way to becoming law.

In its original version the Bill included provisions that would protect individuals from third party harassment, and it introduces the duty on employers to prevent sexual harassment. The idea behind the proposed third-party protection is to protect staff from sexual harassment from customers and other service users. The original draft of the Bill included the duty on employers to “take all reasonable steps” to prevent their staff from being sexually harassed at work. Protection from sexual harassment by work colleagues already exists in law through the concept of vicarious liability and the broad understanding that employers are responsible for the conduct of their staff at work.    

The Bill was before the House of Lords in July 2023. Some concerns over the Bill were raised in the House of Lords, including objections over the costs to businesses, concerns over excessive intervention in business and curtailment of free speech. Following that the Bill was republished with the clause which dealt with third party harassment removed completely, and the duty to take “all reasonable steps” has been reduced to that of taking “reasonable steps” to prevent their staff from being sexual harassed at work.

On the topic of third-party harassment, there had been a limited right to bring a claim against an employer for harassment committed by a third-party between 2008 and 2013. At that time a form of “3 strikes” rule applied, as employees had a right to claim if they suffered a third incident of harassment where the employer was already aware of two previous incidents. As previously drafted the Bill would have resulted in liability for third party harassment arising without there being a need for a prior incident unless the employer could show that it had taken all reasonable steps to prevent that harassment taking place. The fact that this provision has been dropped means that there will still be difficulties in any worker claiming unlawful discrimination in the form of harassment by a third party. However, employers should still be aware of the fact that this issue could still be raised in the context of a claim of unfair dismissal, in particular in the context of claims of constructive dismissal. The approach to the assessment of the conduct of the employer and any resulting constructive dismissal is not necessarily the same as the approach to claims of sexual discrimination in the form of harassment. Just because third party sexual harassment is not specifically outlawed under the Equality Act 2010, does not mean that acts of such harassment, and allowing such harassment to occur, would not give rise to a claim of constructive dismissal.      

Although the change in the text, in removing the word “all” may appear minor, may prove to be quite a significant change. The reason for that is that if an Employment Tribunal were to agree and accept that a particular step that a claimant says their employer failed to take was in fact “reasonable”, even if the employer had failed to consider it, or had reached its own view that it was not reasonable, then by the Employment Tribunal concluding that the step in question was reasonable then the employer will become liable for the consequences. The inclusion of the word “all” to the existing requirement to take “reasonable” steps therefore did increase the possibility of the employer being found liable for an act of sexual harassment. The result of the removal of the word “all” from the text will mean that the legal duty on the employer will in fact be slightly lower than that in the original version of the text of the Bill. The employer will still have to show that it had taken reasonable steps in succeeding with a defence to the claims but will not be penalised for not taking every reasonable step (including a step it had not even considered).  

It is proper then to consider if the proposed legislation will result in a lower standard when dealing with sexual harassment claims. The fact is that it will not in fact result in such a change. In cases of sexual harassment under the Equality Act 2010 the employer will only be able to avoid being held vicariously liable for the actions of their staff or other people under their control or direction if they can show that they have taken all reasonable steps to prevent the discrimination. If the claimant succeeds in their claim of sexual harassment the Employment Tribunal will, under the terms of the Bill, be required to consider if the employer failed to meet the new obligation and duty created by the Bill to take reasonable steps to prevent sexual harassment. Should the Tribunal make the finding against the employer on this matter it will then be able to increase any award of compensation by up to 25%. The increase will not be automatic if it can be shown that one or other “reasonable” step could have been taken to prevent the harassment, because the employer will not be required to carry out “all” reasonable steps. Clearly the fewer steps that were in fact taken by the employer, the greater the risk of the increase in compensation and in the actual percentage increase ordered.

As it often the case, the key to a good defence is for the employer to have introduced relevant policies, training their staff in those policies, and keeping the policies and their implementation under review. Too often employer fail through the lack of such procedures and the lack of training their staff on the relevant policies. It is particularly damaging when employers actually do have relevant policies to tackle this issue, but then fail to operate them properly.      

At Hallett Employment Law Services we can review an employer’s policies and procedures to assist with producing and operating application policies and procedures appropriately, and ensuring that relevant policies are tailored to the needs of the particular business.           

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.