Despite discrimination legislation being in place for over 50 years, harassment in the workplace still remains a prominent issue with polls by the TUC (Trades Union Congress) and Randstad highlighting the high number of female workers experiencing harassment at work. Those with additional protected characteristics are also more likely to be harassed in the workplace, with 96% of women not reporting those situations because of the belief that it would not change anything. According to the EHRC (Equality and Human Rights Commission), harassment by a third party can be just as devastating as harassment by a fellow worker, with 36% of those aged 18–34 stating they have experienced this.
The Worker Protection (Amendment of Equality Act 2010) Bill is a private member’s bill sponsored by Liberal Democrat, Baroness Burt of Solihull, with the purpose of amending the Equality Act 2010. The bill will make employers liable for harassment of their employees by third parties (such as customers or clients) and introduce a specific duty on employers to take all reasonable steps to prevent the sexual harassment of their employees. The bill will also make provision for an uplift in compensation for sexual harassment cases, where there has been a breach of the employer duty. The EHRC will also have powers to investigate and take its own enforcement action against businesses that are not meeting their obligations under the law.
Why is this still an issue?
Although legislation was initially designed to make employers liable for harassment of their employees by a third party, this was repealed with the laws thought to be confusing and unnecessary with only a low number of employment tribunal rulings.
Evaluating the issue further, a 2021 review by Ofsted into sexual abuse in schools and colleges demonstrated that sexual harassment is a routine part of life for schoolchildren and as such, they do not see the importance in challenging or reporting it. As they move from the education system into jobs, assumptions that sexual harassment is a normal part of life are likely to continue this trend into their working practices and those of their organisations.
At present, the law makes employers legally liable if they fail to act, rather than simply requiring them to act, as well as the requirement of two occasions of known harassment to have occurred before liability is triggered, which has established complacency among employers.
The bill will attempt to create a cultural change by shifting the onus onto employers to stop sexual harassment from happening in the first place, by taking reasonable steps to address the risks that can enable sexual harassment while at work. Employers will be supported in doing this through a statutory code of practice, developed by the EHRC, so that they can create workplaces where their staff can work safely and thrive.
Concerns about the bill and how to prepare
There are valid concerns the bill could create increased pressure for employers, by being drawn into costly tribunal claims if they are unable to prove that they have proactively taken steps to prevent harassment. This becomes even more pressurised in the case of a one off or unforeseen incident which can be difficult to negotiate. There is also the grey area of what is and is not banter, with the FSU stating that workplaces may have to employ ‘banter bouncers.’
Although employers will have to proactively tackle third party harassment rather than retrospectively deal with it, the bill will not make them liable if the conversation does not involve or is aimed at the employee and the opinion is not grossly offensive, plus there is no intent to violate dignity.
Although the changes may create a new battleground for lawyers and result in employers being more exposed to tribunal claims, there are some areas where workplaces can prepare for the changes. Central to dealing with these issues will involve having clear policies and procedures that demonstrate how you take reasonable steps to prevent or avoid harassment in the workplace. The policies and procedures must go hand in hand with staff training and development on EDI (equity, diversity and inclusion), so that a culture of safe working and reporting any issues is practiced. It is also vital to undertake a risk assessment on the different types of roles and assess how they will interact with third parties. Requiring third party suppliers to comply with the organisation’s own policies can also reaffirm your expectations to ensure a zero tolerance approach to any form of harassment against members of staff.
Employees now have higher expectations of appropriate workplace culture and greater awareness of their discrimination rights which could leave employers susceptible to uncapped discrimination claims and the risk of adverse publicity. The most effective responses will be those that are tailored to specific sectors and circumstances, with a clear message that harassment in the workplace will not be tolerated, no matter who the perpetrator is. A poor workplace culture impacts on employee engagement and satisfaction rates which can lead to high labour turnover, as well as poor company performance. Creating a positive workplace culture is good for business.
