Changes to Harassment in the Workplace Law

Ever since the emergence of the #metoo movement, awareness has been increasing regarding workplace sexual harassment. As a result of increasing incidents of sexual harassment coming to light, the government pledged in 2021 to enhance safeguards for victims of harassment by making changes to the law surrounding harassment in the workplace law.

To fulfil this commitment, the Worker Protection (Amendment of Equality Act 2010) Bill was introduced. This legislation aims to reinforce the existing legal framework and provide additional support to victims. Encouragingly, the bill has successfully navigated through the House of Commons. It is hoped the bill will pave the way for the potential implementation of new laws as early as the coming year.

What’s the Law on Third-Party Liability?

Previously, the law on liability for harassment caused by third parties in the workplace was covered in section 40 of the Equality Act 2010. Under this provision, an employer was not liable unless it could be established that they were aware that the employee had already been harassed on two previous occasions and that they did not take reasonably practicable steps to prevent the harassment. This was known as the ‘three strikes rule’.

However, the ‘three strikes rule’ was repealed in 2013 after employers claimed it was ‘confusing and unnecessary.’ The elimination of the “three strikes rule” created a loophole in the legislation that the government had previously pledged to address.

The Reintroduction of Third-Party Liability

A new statutory provision- the Worker Protection (Amendment of Equality Act 2010) Bill) is currently making its way through Parliament. Under this Bill, as it currently stands, there would be a widening of circumstances in which an employer could be liable for third-party harassment.  

The new Bill would mean there would be no need for two prior incidents of harassment. An employer would be liable from the first incident of harassment if they failed to take all reasonable steps to prevent the third party from harassing an employee. Additionally, the employer would not need to have knowledge of the harassment in order to be held liable.

However, there have been concerns over the wording of the drafted Bill. This is because critics believe it could inadvertently curtail free speech and oblige employers to shut down controversial conversations. As a result, the drafted Bill  was amended in January 2023.

The proposed amendment aims to establish clear provisions that protect legitimate expressions of opinions related to political, moral, religious, or social matters. To ensure employers are not unduly burdened, specific criteria must be met (which is expected to set a high standard). In such cases, employers would not be obligated to suppress the expression of opinions to avoid liability for instances of non-sexual workplace harassment.

This exception applies specifically to conversations or speeches that are unintentionally overheard and not directly addressed to the individual. However, it is crucial that these conversations are deemed “not indecent or grossly offensive.” However, the specific threshold for this determination remains unclear. Consequently, an unusual distinction arises, whereby if the same “controversial” conversation occurs in a group where the individual is actively participating, it could result in liability.

As currently outlined, this exception would cover instances of harassment from both co-workers and third parties.

Protecting Employees from Sexual Harassment in the Workplace

The Worker Protection (Amendment of Equality Act 2010) Bill) aims to take a shift towards prevention rather than solely focusing on redress. It introduces an obligation for employers to undertake all reasonable measures to prevent sexual harassment of their employees. Failure to fulfil this duty could result in the Employment Tribunal issuing an order an uplift in compensation.

Many employers will already be familiar with the reasonable steps concept regarding avoiding liability in discrimination claims. The drafted law proposes employers take all reasonable steps to prevent discrimination. However, it’s not expected that this will require more than what employers should already be doing to prevent harassment.

An employer should adopt compressive policies and procedures. Additionally, they should ensure that their staff undergo high-quality equality and diversity training on a regular basis, and a record should be kept of what training each employee receives.

It is important to note that there is always a focus in employment law as to whether the employer has acted reasonably in the circumstances. What is considered ‘reasonable’ by a Tribunal will depend on the size and resources available to a Respondent business..

Following a consultation process, a comprehensive Code of Practice will be published to offer additional guidance on the matter.

Steps for Employers Before the Changes to Harassment in the Workplace Law

As the Bill progresses through the legislative process, it is advisable for employers to evaluate and update their relevant policies and procedures to ensure they are strong and current.

Relying on training and policies can help employers show they have taken reasonable steps to stop harassment in the workplace. However, it is much harder for employers to take control of third-party actions. Employers should reflect on whether any preventative steps targeted at third parties should be put in place. Examples of this are:

• Displaying zero-tolerance notices
• Inserting terms in supplier contracts requiring compliance with anti-harassment policies
• Introducing penalties for third parties who harass employers

Cartwright King offers exemplary employment law advice to protect your interests, whether you’re an employee or an employer. Employment law is constantly changing but our Employment Law Solicitors stay current with the latest legislation, ensuring you get the right advice for you or your business.