UK Update: Employers’ Duties to Prevent Harassment and What Comes Next

The highly debated Worker Protection (Amendment of Equality Act 2010) Act 2023 that we have covered extensively in previous blogs has finally received Royal Assent and should come into force on 26 October 2024.

The Act will introduce a new duty on employers to take reasonable steps to prevent the sexual harassment of their employees in the course of their employment. This duty is a significantly reduced version of that which was contained in the original incarnation of the Act introduced to Parliament last year. As previously drafted, the Act would have required employers to take “all reasonable steps” to prevent sexual harassment, whereas the obligation that has become law is only to take “reasonable steps”.

Notably absent from the Act is liability of employers for the harassment of their employees by third parties. This had originally been included in the bill and was then subject to substantial revision before being removed in its entirety by a House of Lords amendment. This was due to government concerns that employers may introduce policies that infringe upon freedom of speech to protect themselves in response to this duty. This means that, under the Equality Act 2010, employers remain liable for harassment of their employees, but only by other members of their workforce.

However, protection from third-party harassment/discrimination has existed in various forms over the years and the Labour Party have publicised their intention to revisit the Act if they are elected following the next general election.  Previously, as expressed in Burton and another v De Vere Hotels Ltd [1997],the law was that employers could be held automatically liable for acts of discrimination against their workers by a third party when they had been in a position to prevent it.

In this case, two black waitresses were subject to racist and sexist remarks by a speaker at an event hosted by their employer. They were then able to hold their employer accountable for direct race discrimination (not harassment, as there was no statutory definition of harassment at that time). While this was overruled in 2003, a few years later the then Labour government intervened with the Sex Discrimination Act 1975 (Amendment) Regulations 2008. Under these regulations, employers would be liable for third-party harassment, but only if 1) they had failed to take reasonable steps to prevent a third party from harassing an employee, and 2) they knew the employee had been harassed by a third party on at least two previous occasions. While this was transplanted into the Equality Act 2010 and extended to cover all protected characteristics, this duty was repealed in 2013 by the then coalition government.

Whether employer liability for third-party harassment will make a return to the statute books is still to be seen and its temporary inclusion in the original drafting of Worker Protection (Amendment of Equality Act 2010) Act 2023 was notable for its removal of the ‘knowledge of two previous occasions’ qualification that had excluded one-off incidents under previous iterations of the law. As society appears increasingly unwilling to tolerate harassment of employees by third parties, and with the Fawcett Society making it clear they will not give up the fight for such protection, it seems likely that we have not heard the last of this matter. In the meantime, we await confirmation of the statutory code of practice that will assist employers to comply with the new duty to take reasonable steps to prevent sexual harassment of their employees.

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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