No protection from third party harassment and watered down duty to prevent sexual harassment

No protection from third party harassment and watered down duty to prevent sexual harassment

Flexible furloughing and calls for clarity: third time lucky?

The Worker Protection (Amendment of Equality Act 2010) Bill was introduced last year as a Private Members Bill. The bill was initially drafted to:

  1. Protect staff from harassment committed by third parties, and
  2. Introduce a new, mandatory duty on employers to take “all reasonable steps” to prevent sexual harassment.

In July 2023, the House of Lords agreed amendments to these two main provisions. Firstly, all third-party provisions were removed, meaning that there will be no change in an employer’s liability if an employee is subject to harassment by a third party. Since 2013, employers have not been liable for the harassment of their employees by third parties. 

Secondly, an employer’s duty to prevent sexual harassment has been watered down. The bill has been redrafted so that employers now only have a duty to take “reasonable steps”. This means that an employer will not be penalised if it does not take every reasonable step that could have been taken.

No change to employer liability for sexual harassment

By way of reminder, this bill does not purport to change an employer’s liability in sexual harassment cases. An employee will still be able to successfully bring a claim against their employer if they can evidence that sexual harassment has taken place in the workplace. Likewise, their employer will still have a defence to a claim of sexual harassment by an employee if the employer can show that it “took all reasonable steps to prevent” the harassment.

New mandatory duty to prevent sexual harassment

However, the introduction of this bill does mean that, if a claimant succeeds in their sexual harassment claim, a tribunal can go on to consider whether the employer has also failed to comply with this new, mandatory duty to take reasonable steps to prevent the sexual harassment. If a tribunal finds an employer hasn’t taken reasonable steps, it will then be entitled to award the claimant additional compensation (of up to 25% of their compensatory award).

It has been confirmed that the government will seek to accept these amendments and so it is therefore very likely that this bill will be passed once it goes back to the Commons for consideration. If the bill is passed, it is likely that the provisions will come into force in the Autumn of 2024. 

Proactive steps for employers to take now

We therefore recommend that employers start taking action now to comply with the proposed new duty and positive obligation. To prepare, employers should undertake a review of the existing policies and procedures they have in place in respect of sexual harassment in the workplace and consider whether further appropriate policies may be required. Employers should also consider implementing appropriate training for staff on behaviour at work.

Contact our experts for further advice

Search our site