Employers to have new and increased responsibilities under sexual harassment laws

The Government is seeking to introduce the Worker Protection (Amendment of Equality Act 2010) Bill, which would substantially increase employers’ responsibilities in relation to harassment should this come into force.

The new Bill effectively means that employers would be directly liable if their employee is harassed by any third party; for example, a client, customer, supplier or contractor in circumstances where the employer does not take all reasonable steps to prevent the harassment from occurring. This applies to any unlawful harassment and employers can be held liable after one incident unless it can demonstrate that that it took all reasonable steps to prevent the harassment occurring.

Employers would also have a new ‘positive duty’ to take reasonable steps to prevent their employees from being sexually harassed. This will require evidence of all reasonable steps to prevent such harassment having been already taken.  A breach of this duty will be enforceable by the Equality and Human Rights Commission who can investigate or litigate, or via an uplift following a successful Employment Tribunal claim for sexual harassment (of up to a maximum of 25%).

At present, there is no positive duty, but employers have a full defence to a harassment claim if they can demonstrate that they took all reasonable steps to prevent the harassment from occurring, including regular training that is refreshed at adequate intervals and policies such as anti-harassment, which are kept under regular review and circulated to staff. Training should also be meaningful and thorough so that staff understand the policies and the practical application of the same.

At the moment, it remains to be seen whether this law will come into force, but commentators have expressed concern for the far-reaching consequences for free speech and the potential for employers to now have a legitimate legal interest in policing what members of the public say…there is also the cost implication of how to police such matters e.g. by putting up signs and employing staff/bouncers etc.

We await further news on when these new laws may come into effect…

To speak to a member of our Employment team, please call 01689 887 887.