This morning The Times (app anyway) led with the heading Pubs “could ban patrons from talking about transgender rights” following on from commentary from evidence given by Equality and Human Rights Commission about the provisions of the Employment Rights Bill that propose to protect workers from being harassed at work by “third parties”.
You will no doubt remember that the Worker Protection Act 2024 changed the law on sexual harassment on 26 October 2024 to include a requirement that employers take reasonable steps to protect workers from sexual harassment in the course of their employment. At the time there was much discussion about the fact that the original provisions proposing that employers must take “all” reasonable steps had been reduced to reasonable steps and employer liability for third party harassment had been dropped. So, whilst the additional statutory obligation require employers to significantly ‘up their game’, which indeed many have done by refreshing policies and rolling out employee training (if you haven’t you should), it didn’t expose employers to the very significant potential liability for the acts of third parties over whom they may realistically have no control.
Whilst obviously the situation is more nuanced than that – for example an employer that is on notice of harassing acts or circumstances in which harassment is likely will be liable should they expose employees to a situation in which they are harassed (i.e. the lecherous client about whom the employer does nothing about because they bring in the big bucks), many breathed a sigh of relief. Unless perhaps, they dug into the revised guidance issued by the EHRC on the 24 September 2024 which made it clear that the view of the Commission was that employers did have a duty to prevent harassment by their own staff and by third parties. Although the EHRC guidance doesn’t create a right of action for an individual to bring a claim against their employer the EHRC can take enforcement action – so not quite the same bite perhaps as the threat of an ET claim but still a clear indication of the direction of travel.
However, before the WPA was even in force, the Employment Rights Bill (published on 10 October 2024) changed the game again putting the “all reasonable” steps back on the table, together with client liability on employers for harassment (NOT just sexual harassment) by third parties, unless that harassment is outside the course of employment and the employer has taken all reasonable steps to prevent it – not an easy thing to demonstrate!
Third party liability for harassment has been an on (original wording of the Equality Act 2010) and off again (2013 when it was repealed) issue for 15 years – and whilst some employers think they dodged a bullet in October, the Government clearly has other ideas. It is however a VERY tricky issue as the EHRC made clear in their comments, warning the Government that the wording of the Bill could “disproportionately curtail” freedom of expression and be applied to “overheard conversations”. Essentially employers becoming potentially liable for the expressed opinions of individuals over whom they have no control and particularly challenging when one considers the more nebulous protected characteristic of “philosophical belief”.
You have to wonder whether the Government will push ahead, despite the obvious concerns that protection from all types of harassment raises “complex questions”. The provisions have nearly got there a number of times – is 2025 the year in which they will get over the line – or will the Government take the view that they can’t afford the discontent that such legislation will quite probably sow amongst employers who are already feeling the pinch of the budget?
If you have not updated your employee training on diversity and inclusion, and in particular on sexual harassment, since the October changes you are undoubtedly leaving your organisation exposed to potential claims. We regularly run training for clients which (I’ve been told) is engaging, interesting and delivered in a way that people retain. If you’re interested in discussing what you do / how you could do it better / getting a quote for in person or digital training, do drop me a line at [email protected]).
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