The Future of Work: Insights into the new Employment Rights Bill: #2: A new era of protection against harassment in the workplace

In just a couple of days’ time, employers will – for the first time – have a new positive obligation to take reasonable steps to prevent sexual harassment in the workplace. This is a significant milestone in the protection of employees and marks a material stride forward in the momentum for tackling this issue – a matter which has been on the political agenda for quite some time, since the advent of the #metoo movement in 2017 – but hasn’t quite made it to the top, until now.

Now, in a coincidental twist of timing, with the publication of the Employment Rights Bill (Bill) on 10 October 2024, we also have some additional proposals on the table which seek to provide employees with further protection.

In this second article of our series on the Future of Work: Insights into the new Employment Rights Bill, we take a look at what these new provisions mean. What is clear at the outset is that they will have a material impact, not only increasing the burden on employers to prevent sexual harassment in the workplace but also protecting employees from harassment of any kind by third parties.

Sexual harassment

The legislation implementing the new positive duty to take reasonable steps to prevent sexual harassment in the workplace had a troubled journey through the parliamentary process. Originally intended to require employers to take all reasonable steps to prevent sexual harassment, the burden was ultimately watered down and only an obligation to take reasonable steps made it onto the statute books. That said, the new duty is still onerous and employers will have to take positive and proactive steps to ensure they comply, including conducting, and regularly reviewing, thorough risk assessments and ensuring that effective policies and procedures are in place as well as comprehensive training. See our earlier article. For many employers, this will require a significant shift in their current practices.

The new Bill seeks to reinstate the original plan that employers will have to take all reasonable steps to prevent workplace sexual harassment. Arguably it may seem that the difference between ‘reasonable steps’ and ‘all reasonable steps’ is one of semantics, and a line between the two difficult to draw. However, there is no doubt that the practical impact of the new Bill will be that an employer cannot escape taking any step to prevent sexual harassment which could be deemed a reasonable one to have taken.

The Bill says that Regulations may set out steps that are to be regarded as ‘reasonable’ (such as carrying out assessments, publishing plans or policies and implementing steps relating to the reporting of sexual harassment and the handling of complaints) and the Explanatory Notes make clear that employers will need to take all those steps, plus any other steps which are reasonable in the circumstances. This is an onerous and potentially very wide-ranging burden for employers.

The remedy for non-compliance, however, has not changed. A breach of the duty will not enable employees to bring a standalone tribunal claim; instead it remains something which will be taken into consideration in the event that an employee’s sexual harassment claim is successful and compensation is awarded. In these circumstances, it is possible that the awarded compensation will then be uplifted by up to 25%.

A final point to mention in relation to sexual harassment is the new Bill’s inclusion of a provision which will make a disclosure that ‘sexual harassment has occurred, is occurring, or is likely to occur‘, a qualifying disclosure for the purposes of whistleblowing protection. Whilst arguably superfluous to requirements given the already broad scope of matters which constitute a qualifying disclosure, this new provision does serve to further reinforce the government’s commitment to protecting workers against workplace sexual harassment.

Harassment by third parties

Employee protection against harassment by third parties has had a chequered journey, with express – and unduly complicated provisions – first being introduced into the Equality Act 2010, before then both being unceremoniously repealed in 2013 and also removed from proposed inclusion in the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Now, the new Bill seeks to reinstate this protection, and in a more straight forward way. The first critical point to note is that the new protection relates to all types of harassment set out in section 26 Equality Act 2010 and to all covered protected characteristics (age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation). The protection is not just against sexual harassment. Employers will only have a defence if the harassment is outside the course of employment and / or it has taken all reasonable steps to prevent it.

Importantly – and unlike the new duty to prevent sexual harassment – the new protection against third party harassment is a standalone claim which employees can bring in the tribunal in its own right. This ups the ante in terms of the potential exposure and liabilities employers might face in this regard.

Although there is no firm timescale yet for the new standalone protection against third party harassment coming into force (and potentially a period of consultation to go through) given the potential liabilities introduced by this reform, employers – and particularly those in sectors where employee contact with third parties is common – will need to urgently assess the impact of these new provisions.

Finally, it is also worth noting that the new duty to take reasonable steps to prevent sexual harassment, coming into force on 26 October, also applies to sexual harassment by third parties, meaning that there is already an imminent potential for uplifted compensation where a separate sexual harassment claim has been successful and an employer is found to have breached this duty.

Please don’t hesitate to reach out to our Employment Group and / or your usual DLA Piper contact if you wish to discuss this, or any other aspect of the Employment Rights Bill reforms – and look out for our next article in this series: coming soon!

Click below to read our earlier articles:

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The Future of Work: Insights into the new Employment Rights Bill: #2: A new era of protection against harassment in the workplace