Harassment in the workplace

If you open any news outlet, it won’t take you long before you stumble upon a story about harassment in the workplace. Whether it be sexual harassment allegations against TV chefs like Gino D’Acampo and big businesses such as McDonald’s, or fears on what the Employment Rights Bill may mean when it comes to third party harassment – there’s no denying it’s a hot topic.

As it’s now been six months since the duty on employers to take reasonable steps to prevent sexual harassment came into force, let’s recap on what that means for you and look at what the future of harassment in the workplace may hold.

The Worker Protection (Amendment of Equality Act 2010) Act

As of 26 October 2024, employers are under a legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent it. Employers should not wait until a complaint of sexual harassment has been raised before they take any action.

Employers need to take reasonable steps to prevent sexual harassment committed by workers but also by third parties which could include customers, clients, self-employed contractors or freelancers, service users, patients, students, friends and family of colleagues, delegates at a conference and members of the public.

What are reasonable steps to take will vary from employer to employer. The law does not, therefore, list specific steps an employer should take. However, whilst it does not give an exhaustive list, the EHRC has set out eight practical steps to illustrate the type of action an employer could take.

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What do I need to do to comply with the new sexual harassment laws?

Whilst a standalone claim cannot be brought in an employment tribunal for breach of this preventative duty, if an employer does not comply, the EHRC has the power to take enforcement action against the employer. This enforcement action can be taken by the EHRC even if an incident of sexual harassment has not taken place.

Where there has been an incident of sexual harassment and a claim is brought in an employment tribunal, an employer can be held vicariously liable for the acts of its employees. Whether the preventative duty has been complied with, and to what extent, must be considered by the tribunal. If the tribunal is satisfied that the preventative duty has been breached, it can increase any compensation awarded to the claimant by up to 25%. 

Third party harassment

The Employment Rights Bill proposes to make employers liable for third party harassment. This means, that if introduced, an employee could bring a claim against their employer if they are harassed by a third party.

However, whilst there are discussions in the media around what this means in practice, in reality, it is very unlikely employers will be expected to completely eradicate harassment from third parties in their premises. After all, that is near impossible. Current laws provide employers with mechanisms that allow them to dispute liability for any harassment towards their staff; they do this by showing that they have taken all reasonable steps to prevent the harassment from happening. This is a very different threshold to physically making sure it does not happen.

Whether or not this proposal will make it into the final version of the Bill is still to be determined. But make no mistake, its existence alongside the preventative duty on sexual harassment and the continued media coverage clearly show that employers will be required to focus on this for some time to come.

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What is contained in the Employment Rights Bill?