Third-Party Harassment Bill – An Employer’s Duty to Protect their Staff
In 2013, David Cameron’s Conservative government repealed Section 40 of the Equality Act, which made employers liable for harassment by third parties such as customers, clients and service users, against their staff.
Ironically, the Worker Protection (Amendment of Equality Act 2010) Bill, which has now completed its third reading, now seeks to reinstate the section 40 protections.
Indeed, under the Bill’s provisions, the duties go further than its predecessor; one example is that should harassment of an employee occur, the employer must take action from the first moment it is reported to them.
What duties does the Act impose on Employers?
Once enacted, the employer will be held liable if a third party harasses an employee during their employment and the employer is deemed to have failed to take all reasonable steps to prevent that third party from doing so. This provision is not limited to sexual harassment and covers the other relevant protected characteristics, such as race, age etc.
Once this Bill comes into full force, the Employment Tribunal will be able to enforce any claims for harassment being brought under this legislation; the tribunal will also have the discretion to award a “compensation uplift” by increasing any compensation it awards for sexual harassment by up to 25% where there has been a breach of the employer duty in sexual harassment cases.
A 25% uplift could be considerable, bearing in mind that the average sex discrimination award in 2021 was £24,630, and the highest was £184,000. Compensation for sexual harassment is uncapped, and awards vary depending on the severity of the injury to feelings and loss of earnings.
The Equality and Human Rights Commission (EHRC) can also take enforcement action for a breach or suspected breach of duty. EHRC investigations can attract negative publicity. An example of this was when the EHRC investigated the handling of sexual harassment complaints made by staff at McDonald’s UK restaurants in February 2023. McDonalds were forced to make a number of public commitments. In particular, to implement a zero tolerance approach to sexual harassment moving forward.
Whilst the Bill has not yet been passed into law, employers should take these changes seriously. Failure to comply could have severe consequences by way of claims being made against them. Employers should start reviewing their policies now; either update them or create new policies to reflect the changes. These could include having an equal opportunities policy or an anti-harassment and bullying policy. However, the employer must also take steps to implement the policies and ensure they are being adhered to. This might consist of providing sufficient and regular training to staff and managers and regularly reviewing the policies so that all training is up to date. This change could expose employers to claims being made against them, and therefore, they must be prepared.
If you have any questions on how it will affect your business please contact info@jfhlaw.co.uk and a member of our trusted team can assist you.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written which may affect the information and advice given therein.
