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New employer obligation to prevent harassment in the workplace is on the way

New Guidance on Harassment
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Peninsula Team, Peninsula Team

(Last updated )

The Worker Protection (Amendment of Equality Act 2010) Bill has now been approved by parliament so once it receives royal assent it will become law.

But since its initial drafting it has seen some changes as it made its way through parliament. The result is that it has narrowed in scope.

The initial drafting of this bill proposed liability on employers for harassment of their employees by third parties and a proactive duty on employers to take ‘all reasonable steps’ to prevent harassment.

Harassment is unwanted conduct which creates an intimidating, hostile, degrading, humiliating or offensive environment. The behaviour must be linked to a protected characteristic which includes disability, race, sex, for example, or it could be because of behaviour that is of a sexual nature. It doesn’t matter whether it was intended to have that effect, if it did then that could be harassment. It can be a one-off incident, or behaviour which takes place repeatedly. 

When the bill was considered by the House of Lords, they amended it to remove the third-party liability, and diluted the proactive duty on employers to take ‘reasonable steps’ to prevent harassment, therefore, removing the word ‘all’.

These amendments have now been considered and approved by the House of Commons so will progress to be added on to the statute books. It will likely, however, be some time until it is implemented.  

Whilst the proposed liability on employers for harassment of their employees by third parties has now been removed, it is vital for employers to remember that the prevention of harassment should remain a central focus. This is because sexual harassment remains prevalent and claims by employees who have been harassed by third parties could still be made indirectly through constructive unfair dismissal claims for which employers can be vicariously liable.

Employers need to be able to demonstrate that they have robust policies and procedures in place that are communicated to staff. These should be lived and breathed in the organisation, not just filed away in a drawer. The effectiveness should also be reviewed on a regular basis. Employees should know what to do and who to approach if they become aware of any inappropriate behaviour in the workplace occurring through any medium, for example, Teams, social media, emails or in person. Employees should have training to ensure that everyone in the organisation, from the top down, knows how to behave in the workplace in a professional and inclusive manner.

In preparation for this bill being implemented, employers should review what steps they take to prevent harassment and reflect upon whether there is anything further that they need to be doing.

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