Bill formulates new duty to prevent harassment in the workplace

Legislation that would expand the duties and potential liabilities of an employer in relation to sexual harassment in the workplace has had its second reading in the House of Commons.  It will now progress, with Government support, to the committee stage.

The changes, first outlined in the Government’s July 2021 response to the consultation on sexual harassment, have now been formalised in the Worker Protection (Amendment of Equality Act 2010) Bill. This is a private member’s bill promoted by Wera Hobhouse MP.

As we reported last summer, under the proposed changes:

• employers would have a specific legal duty to take all reasonable steps to prevent sexual harassment of their employees in the workplace; and
• employers can potentially be liable for harassment of employees by third parties (e.g. customers or clients).

Duty to prevent sexual harassment

As proposed in the consultation response, the duty on employers to prevent sexual harassment will be very similar to the current defence available to employers for discrimination claims. However, instead of employers being relieved of vicarious liability for their employees if they have taken “all reasonable steps” to prevent employees carrying out acts of harassment, employers will have a positive duty to take such steps. Although employees cannot bring a standalone claim that an employer has failed in this duty, if harassment is found to have taken place, the employee could be entitled to an uplift in their compensation where there has been a breach.

This new duty can also separately be enforced by the Equality and Human Rights Commission against employers.

Harassment by third parties

The proposed legislation will, as anticipated, re-instate the potential for liability for an employer where employees are subject to harassment by a third party, even a third party over whom the employer does not have direct control. The previous ‘three strikes’ rule (where two incidents of known harassment had to have occurred before liability was triggered) has not been reintroduced. Instead, liability will be triggered on the first incident of harassment by a third party, if the employer has failed to take all reasonable steps to prevent it. This liability will apply regardless of whether the employer has approved, or is even aware of, the actions of the third party. Being harassed by a third party will therefore have substantially the same legal treatment as harassment by a colleague.