Sexual harassment laws set to change - again

Currently, employers have a duty to take reasonable steps to prevent sexual harassment from occurring in the course of employment. If an employer fails in their obligations, the tribunal may apply an uplift in compensation for claims of sexual harassment. 

 

The current law does not list specific steps that employers must take, but the Equality and Human Rights Commission (EHRC) has suggested steps that could help. 

 

Employers may also be vicariously liable for discrimination committed by employees (whether towards other employees, or a third party such as a customer). Employers can defend against such claims by showing that they took all reasonable steps to prevent the harassment. 

 

Employers cannot be held liable for sexual harassment by third parties, such as customers or contractors. However, they can be penalised for failing to take reasonable steps to prevent it. 

 

 

The Employment Rights Bill would require employers to take all reasonable steps to prevent sexual harassment. It includes provision for regulations to specify steps that would be regarded as reasonable when deciding if an employer has met their duty. 

 

The Employment Rights Bill will specify that disclosures relating to sexual harassment in the past, currently occurring, or likely to occur are protected as whistleblowing disclosures. 

 

It would enable employers to be held liable for harassment by third parties. This would apply to harassment based on all protected characteristics, not just sexual harassment. 

 

 

The changes would simplify the requirements, bringing employers duties and defence in line to both require ‘all reasonable steps’. 

 

The steps which could be specified in regulations include: 

 

 

Until we have more details, it is difficult to say what practical difference this will make. 

 

The EHRC has already provided an 8-step guide to preventing sexual harassment at work, which covers anti-harassment policies, risk assessments, systems to report harassment and responding to complaints. This guidance is only to “illustrate” the types of action employers could take and acknowledges that different employers may take different approaches. But it might already be difficult for an employer claim they had taken reasonable steps if they have failed to create a policy or processes for reporting and managing sexual harassment. 

 

The regulations produced under the Employment Rights Bill could have more authority, with employers required to show they have taken specific steps. However, the regulations will still need to balance this with flexibility for different types of businesses. 

 

 

Employees, workers and trainees are protected when they make a disclosure in the public interest concerning past, current or potential future wrongdoing. The disclosure must concern one of the specified grounds: 

 

 

The Employment Rights Bill will add a ground for sexual harassment. 

 

But disclosures about sexual harassment would already fit the grounds of criminal offence and/or breach of legal obligation. Again, until we have more detail, it is unclear whether this addition will make a practical difference. 

 

 

The changes could place a higher burden on employers but could also provide more certainty. We will know more when the regulations set out the reasonable steps for employers to take. We will also gain more insight from debates as the bill passes through Parliament. 

 

For now, employers should ensure they are engaging fully with their current duties. This will protect from claims under the current law and help prepare for the changes.