Employment Rights Bill – New duty to prevent Sexual Harassment

The Government announced its revised Employment Rights Bill on 10^th October 2024, when it outlined the greatest shake-up in Employment law for a generation. In our comprehensive overview of the Bill we covered the key changes that were to be introduced.

In this series of follow-up articles, we will examine each element of the bill in more detail, the impact of the proposed change on employers, and how to future-proof your business. This article will analyse the changes the bill brings to an employer’s duty to prevent sexual harassment.

The current legislation regarding an employer’s duty to prevent sexual harassment

As part of the planned introduction of the new Government’s Employments Rights Bill, specifically in relation to safeguarding workers in the workplace, the Worker Protection Act 2023 (WPA 2023) was recently announced and came into force on 26th October 2024.

The WPA 2023 amends the Equality Act 2010, which was the main legislation to deal with harassment, generally,  in the workplace and which enabled an employer to defend a harassment claim if they could show they had taken “all reasonable steps” to prevent it from happening in the first place.

The WPA 2023 introduced a new legal obligation for Employers to take ‘reasonable steps’ aimed at preventing sexual harassment of their employees, referred to as the ‘preventative duty’.  This duty applies to sexual harassment and does not apply to any harassment related to disability, age, religion or belief, or harassment that relates to sex that is not sexual in nature. It also does not apply to less favourable treatment for rejecting or submitting to unwanted conduct.

Prior to this change in legislation, employers were not required to take proactive actions to prevent sexual harassment in the workplace.

What is Sexual Harassment

Under the Equality Act, sexual harassment is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, regardless of if it was intended or not.

According to the ACAS, examples of sexual harassment in the workplace can include:

• making sexual remarks about someone’s body, clothing or appearance;
• asking questions about someone’s sex life;
• telling sexually offensive jokes, making sexual comments or jokes about someone’s sexual orientation or gender reassignment;
• displaying or sharing pornographic or sexual images, or other sexual content;
• touching someone against their will, for example, hugging them;
• sexual assault or rape;

In the workplace, it includes employees, workers, contractors, self-employed individuals, and prospective job candidates.

An example of harassment that relates to the sex of a person i.e. whether they are male or female, and which is not classed as sexual harassment would be:-

A man says to a woman “It’s not my job to do that, it’s a woman’s job” when referring to the job of changing the sheets on a bed.

This type of harassment is not protected by the new ‘preventative duty’.

An example of sexual harassment would be:-

A shopkeeper continually asks one of his shop assistants to go out for dinner with him. The shop assistant keeps rejects his advances and then is turned down for a promotion which she believes she would have got if she had accepted her boss’s advances. The shop assistant would have a claim for harassment.

This is protected by the new ‘preventative duty’ on employers.

Protection from Harassment, What the Employment Right Bill will bring

The forthcoming Employment Rights Bill will amend the existing legislation and extend its provision, requiring employers must undertake ‘all reasonable steps’ to avert harassment of their workforce.

Separate regulations will define what constitutes the ‘reasonable steps’ that employers must implement to fulfil their obligation to prevent sexual harassment (including incidents involving third parties), which will include providing policies in regard to these issues, putting in place procedures for reporting sexual harassment, conducting risk assessments, putting in place the reporting processes and outlining their complaints procedure in regard to sexual harassment.

The proposed legislation will also modify current laws to state that an employee who reports incidents of sexual harassment is making a ‘protected disclosure’ and meaning that the employee is protected as a ‘whistle-blower’.

Third-Party Harassment

The Employment Rights Bill, when it comes into force, will reintroduce employer liability for third-party harassment in relation to all relevant protected characteristics.

Under the Bill, an employer will be liable in the following circumstances:

1. a) Where the third party harasses the employee in the course of their employment with the employer.
2. b) The employer fails to take all reasonable steps to prevent the third party from harassing the employee in the course of their employment.

It is important to be aware that even if the employer has no knowledge of the harassment they can still be found liable. Therefore, it is important that employers take all reasonable steps to prevent third-party harassment.

What does this mean?

The new provisions provide further protection for employees from third parties due to the obligation placed on employers to take proactive steps and unlike previous legislation there is no requirement for the harassment to have taken place by the third party on at least two occasions.

This gives employees working in industries where they have regular third-party interaction, either with clients or the general public, more reassurance that their employer has a level of responsibility to protect them from harassment.

Depending on the size and resources of an employer, reasonable practical steps to prevent third-party harassment might include:

• Notifying third parties that harassment of its staff is unlawful and will not be tolerated (for example, by the display of a public notice);
• Including a term in all contracts with third parties notifying them of the employer’s policy on harassment and requiring them to adhere to it;
• Encouraging staff to report any acts of harassment by third parties to enable the employer to support the person who has been sexually harassed and take appropriate action;
• Taking action on every complaint of harassment by a third party.

It’s also worth noting that although the Employment Rights Bill has not yet introduced the further protections from third parties, the Equality and Human Rights Commission (‘EHCR’) makes clear that the ‘preventative duty’ on employers includes third-party harassment and although an employee cannot bring a standalone claim for third party harassment in the Employment Tribunal, it can still result in legal liability when raised in other types of claims.

The EHRC advises that an employer’s policy should explain what third-party harassment is and that:

• While an individual cannot bring a claim for third-party harassment alone, an employer may be legally liable when raised in other types of claim;
• That the law requires employers to take reasonable steps to prevent sexual harassment by third parties;
• It will not be tolerated and staff are encouraged to report it;
• Steps will be taken to prevent it. For example, warning notices to customers or recorded messages at the beginning of telephone calls;
• Steps will be taken to remedy a complaint or prevent it from happening again. For example, warning a customer about their behaviour, banning a customer, reporting any criminal acts to the police, or sharing information with other branches of the business.

What does this mean for Employers?

Employers should already be making changes following the introduction of the WPA 2023, especially given that If an employer is found to have breached their duty to take reasonable steps to protect their workforce from Sexual harassment, an Employment Tribunal has the ability to uplift an employee’s compensation by up to 25% if proceedings are brought against their employer.

The new Employment Rights bill provides even stronger protection for employees and places a larger obligation on employers to take proactive steps than under previous legislation.

Specific sectors, where staff come into regular contact with third parties, such as hospitality, retail, construction, hospital, financial, transport and other sectors, may find it difficult to meet the new ‘preventative duty’, as the duty placed on employers is an objective test and depends on the facts and circumstances of the situation.  This is why it is so important to carry out a risk assessment for any business and ensure that they have thoroughly reviewed all of their procedures and policies to prevent harassment and remain compliant.

What will happen next?

The Employment Rights Bill is the first phase of implementing the changes that are required.  It is anticipated that the Bill will not obtain Royal Assent until 2025, with the majority of the reforms projected to be implemented in 2026 after a period of consultation.

Talk to Tollers

Even though the Bill is not due to be implemented until 2026 Employers should ensure that they are currently compliant with the WPA 2023 and start to prepare for the changes to come when the new Bill comes into force.

Tollers Employment and HR team recommend that employers review and adapt any current policies in place to ensure compliance with the recent WPA 2023 legislative update, as well as carry out a risk assessment as soon as possible and keep secure records of any assessments which have been undertaken.  The team also recommended that employers develop an Action Plan, if they have not done so already:

1. Anti-Harassment Policy – an effective anti-harassment policy that includes a reporting system for employees and workers to raise sexual harassment issues and allow employees to raise these issues anonymously;
2. High Risk Workplaces – assess high risk workplaces where staff are left alone with customers such as in the hospitality industry;
3. Risk Assessments – as a minimum, undertake risk assessments for your business; and
4. Training – provide training to your employees on how to ensure they comply with the anti-harassment policy so staff are aware of what behaviours will not be tolerated by your business.

Employers will not comply with the new WPA legislation unless they have at least carried out a risk assessment on their business.

If you would like assistance to ensure your business is compliant with the current legislation or to prepare your business for the new duty to prevent sexual harassment that the Employment Rights bill will introduce… Talk to Tollers on 01602 258558, our experienced Employment and HR law team are Here to guide you.