The Worker Protection (Amendment of Equality Act 2010) Bill (the Bill) recently received Royal Assent so becoming an Act and will come into force in October 2024 across the UK. In this article, we examine the amendments the Bill will make and provide an overview of what employers should prepare for.
The Equality Act 2010
Employers were formerly liable for third party harassment of employees where they failed to take reasonable steps to prevent it and/or knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (such as a customer or client). These provisions of the Equality Act were repealed in 2013 – an amendment that was met with substantial criticism as it seemed to diminish the robustness of safeguarding measures.
In the wake of the Me Too movement and findings of rife workplace harassment, the Bill will reintroduce employer liability for harassment of employees in the workplace, but in a slightly different way.
What does the Bill change?
- The Bill imposes a positive duty on employers to take “reasonable steps to prevent sexual harassment of [their] employees … in the course of their employment“.
- The Bill originally intended to extend employer liability to third party harassment, such as by customers or clients. However, this extension was later dropped. Nonetheless, the Bill imposes a new positive duty on employers and complements other protections against sexual harassment already provided within the Equality Act.
- The decision not to re-introduce specific liability for harassment by third parties has been heavily criticised. This was an original objective of the Bill due to findings that third party harassment is a particular issue for employees in customer-facing roles.
- The original drafting of the Bill would have required employers to take “all reasonable measures” to prevent sexual harassment. However, during its review, “all” was removed due to concerns of the potentially onerous obligation this would place on employers, especially on smaller organisations.
- The decision to remove “all” has also been heavily criticised over concerns that, without it, the Bill imposes a limited and diluted duty on employers which will be easier for them to argue that they satisfied, even if harassment has occurred.
- “In the course of their employment” means that employers may be held liable for harassment occurring outside the workplace per se, but on the periphery, such as at work parties.
- Employment tribunals may increase compensation awards in sexual harassment claims by 25% in cases where an employer is found to have breached the newly established duty of prevention. This gives teeth to the amendment and creates a bigger incentive for employers to ensure that their practices align with this new obligation and that they take the requisite “reasonable” steps to ensure that their employees are protected.
What should employers to do to prepare?
The potential impact of the Bill on employers, particularly in light of its diluted state, is uncertain. However, what is certain is that the Bill imposes a new obligation on employers to be proactive in their approach to taking practical steps to prevent harassment. The Equality and Human Rights Commission intends to run a consultation in order to issue guidance for employers and we recommend that employers refer to this when it is published. In the meantime, employers should prepare to take steps such as:
- providing updated training on sexual harassment in the workplace, especially to management and for those in customer-facing roles;
- updating relevant policies and procedures, such as in regard to harassment, bullying, equality, diversity and inclusion, discrimination and whistleblowing, and communicating these updates;
- having in place a speak up/helpline reporting system for employees; and
- keeping meticulous records of training sessions and proof of other preventative measures taken.