UK Update: Challenging harassment in the workplace: The stakes for employers and the future of the Worker Protection Bill

How might employers become liable for harassment by third parties and face increased compensation for sexual harassment under proposed legislation?

Third party harassment

The House of Lords is currently considering the Worker Protection (Amendment of Equality Act 2010) Bill, which aims to strengthen protections for workers from harassment by third parties in the course of their duties. The bill re-introduces past worker protections that were scrapped by the coalition Government in 2013, but with even stricter standards. Liability for the actions of third parties brings with it significant implications for employers: especially those in public-facing sectors like hospitality.

Currently, under the Equality Act 2010, employers only have a duty to protect their workers from harassment by other workers. The Act defines harassment as “unwanted conduct relating to a protected characteristic” (i.e. age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”. An employer has a defence if it can show that it took all reasonable steps to prevent the harassment occurring.

The bill would significantly extend employers’ liability by also holding them accountable for harassment by third parties. This liability would be triggered on the first instance of harassment, even when the employer has no control over, or knowledge of, the third party’s conduct. However, like with harassment by a colleague, an employer will have a defence if it can show that it has taken all reasonable steps to prevent a third party harassing a member of staff.

Recently, some ministers raised concerns that employers may introduce policies that infringe upon freedom of speech to ensure protection from liability under the proposed legislation. To address these concerns, an amendment has been introduced to the bill that provides that employers will not be held liable in cases of non-sexual harassment when a worker overhears a conversation that expresses opinions on political, moral, religious, or social issues that are not indecent or grossly offensive and, do not have the purpose of violating the worker’s dignity or creating a hostile environment. It seems overwhelmingly likely that the line delineating these two categories will give rise to significant disputes and litigation. Interestingly, this amendment applies to harassment claims generally and not just third-party harassment claims, representing a significant change in the law of harassment.

Duty to prevent sexual harassment

The proposed legislation would also introduce a new duty requiring employers to proactively take all reasonable steps to prevent sexual harassment in the workplace. An employer currently has a defence to a harassment claim if it can show that it took all reasonable steps to prevent a worker from harassing a colleague, but there is no positive duty to take steps to prevent harassment.  While workers would not be able to make standalone claims on the basis that such steps have not been taken, they would be entitled to increased compensation if sexual harassment does occur and steps had not been taken to prevent the harassment. Employers could also be subject to enforcement action by the Equality and Human Rights Commission.

How employers should respond

If the proposed bill comes into force, employers will not be required to prohibit all discussions about contentious issues; however, they will need a zero-tolerance approach towards any communications that are indecent or grossly offensive and towards sexual harassment.

Employers should ensure that they have a clear, secure, and well-functioning reporting system for all forms of harassment. If the third-party harassment provisions are introduced, there are several steps employers should consider, including conducting up-to-date risk assessments relevant to the new legislation, and implementing appropriate measures to reduce potential risks. Employers may also consider advertising campaigns and signage to target third parties.

In respect of the duty to prevent sexual harassment, employers should ensure tailored, ongoing training on workplace harassment and the adoption and maintenance of comprehensive workplace harassment policies.

If the bill proceeds, a statutory code of practice on harassment will be produced and will hopefully provide further guidance on what is expected of employers.

The Future of the bill

It has recently been reported in the press that the bill is under threat from Government ministers. Notwithstanding its initial success in the House of Commons and support from organisations like the Fawcett Society, there have been reports that internal dissent within the Conservative Party has led the Government to withdraw their support for the bill. This turn of events, if indeed true, may spell the end for the bill.

While the bill’s future may be uncertain, it is a good reminder to employers of the importance of ensuring that workplace discrimination and harassment policies and procedures are sufficient and up to date. This will assist an employer’s defence that they have taken all reasonable steps to prevent harassment in the workplace should a claim arise under the current law. The recent case of Tesfagiorgis v Aspinalls Club Ltd highlighted that it will not be defence to a claim to simply have policies and standard training place. Both policies and procedures should be tailored to the organisation and effectively implemented. If you would like advice on drafting and implementing harassment policies, training, or developing preventive steps, please do not hesitate to get in touch.

We will keep you up to date on the progress of this bill (and other legislative changes).

By Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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