Sexual harassment law: Employers to gain new responsibilities

By Natasha Adom in Personnel Today

After a long gestation period, new sexual harassment responsibilities for UK employers look as though they will successfully make it through parliament. What changes do employers face if the law is enacted, asks GQ|Littler’s Natasha Adom.

The government is supporting a private member’s bill that would significantly increase employers’ responsibilities in relation to harassment. If the Worker Protection (Amendment of Equality Act 2010) Bill is enacted as drafted, it would mean that employers would be liable if their employee is harassed by any third party (such as a client or customer) and would also have a new positive duty to take reasonable steps to prevent their employees being sexually harassed.

Liability for harassment by third parties

Under this bill, employers would be directly liable for harassment by a third party, unless they can show they took all reasonable steps to prevent the harassment taking place. This protection is drafted very widely. For example:

• It would cover harassment by any third party. This might include a customer, client, contractor or supplier, for example.
• Employers would be liable for any unlawful harassment (not just sexual harassment). So, if an employee was racially harassed by a client the employer could be liable for that harassment.
• An employer could be liable after just one incident of harassment unless it could show it took all reasonable steps to prevent the harassment occurring.

New positive duty to prevent sexual harassment taking place

This new duty would be enforced in two ways:

• Firstly, employers that fail to comply with this new positive duty could face enforcement action by the Equality and Human Rights Commission (which might include investigations or litigation for example). It remains to be seen what additional resource the commission will be afforded to implement this in practice.
• Secondly, where employees successfully bring a sexual harassment claim and the employer has failed to comply with its duty, any compensation may be increased by up to 25%.

Currently, there is no such positive duty. Instead, the way the law works is that employers have a full defence to a harassment claim if they can show they took all reasonable steps to prevent the harassment from occurring. This includes having policies in place and appropriate training.

This legislation was first proposed by the government back in 2018. But legislation was not introduced until a private members’ bill was set out by Liberal Democrat MP Wera Hobhouse.

This followed studies suggest that harassment remains a significant issue for many employees. In a government consultation 54% of respondents reported having experienced sexual harassment at work; and the EHRC Turning the Tables report found that a quarter of employees who reported harassment said the perpetrators were third parties.

What happens next?

Assuming this bill is passed, which seems more likely than not since the measures were initially proposed by the government, it would become law a year after it receives Royal Assent. It is currently in the House of Lords after passing through the Commons.

The EHRC has also indicated that it would produce a Statutory Code of Practice for employers which would provide important guidance.

In the meantime, employers wishing to prepare for these changes may want to consider the following things:

• Contractual terms and relationships with third parties: do these make clear your expectations of behaviour?
• Policies: do you have appropriate anti-harassment policies in place? Are they clear and understandable and kept under regular review? You may also want to ensure you utilise opportunities to make staff aware of them and that they are implemented and followed if complaints are raised.
• Regular training: the case of Allay Ltd v S Gehlen has shown that employers will not be able to rely on a reasonable steps defence unless they can show their training is thorough (not brief or superficial), regularly delivered and refreshed if particular issues arise. Such training is likely to become even more important should these changes be implemented. The Employment Appeal Tribunal in that case concluded that the original tribunal was “entitled to conclude training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the respondent should have taken”.