New duties to be imposed on UK employers to prevent sexual harassment

The Worker Protection (Amendment of Equality Act 2010) Bill would amend the provisions in the 2010 Equality Act 2010 to better protect employees from workplace harassment and sexual harassment, shifting the focus from ‘redress’ to ‘prevention’. Although introduced by Liberal Democrat MP Wera Hobhouse, the bill received government support during its second reading in parliament last month, which coincided with the fifth anniversary of the #MeToo movement going viral on social media.

The most significant changes proposed by the bill include imposing a new positive duty on employers to “take all reasonable steps” to prevent their employees experiencing workplace sexual harassment. An employment tribunal would also be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent harassment had not been complied with.

The bill would also make employers potentially liable for the harassment of staff by third parties, such as clients or customers, if they have failed to take all reasonable steps to prevent such harassment. These protections would apply to all acts of third party harassment in the workplace, for example racial as well as sexual harassment. The previous third party liability provisions in the Equality Act were repealed in 2013 as the then government claimed they imposed an unnecessary burden on businesses.

If the bill is passed in its current form, an employee would be able to bring a third party harassment claim against their employer in respect of third party harassment after a single incident of harassment, lowering the pre-2013 threshold set by the ‘three strikes’ rule. Under that rule, employers needed to know of two previous incidents of third party harassment before they could be considered liable. Employers would once again be able to rely on the “all reasonable steps” defence.

The government has expressed strong support for the bill, praising it as “an important step change in the protections available against workplace harassment” with its renewed focus on prevention. 

“Against the political backdrop of promised deregulation and a rumoured move away from many employment protections the latest private members bill is undoubtedly of real significance,” said employment law expert Kate Dodd of Pinsent Masons.

According to MPs supporting the bill, these are long-awaited legislation changes relating to workplace sexual harassment prevention. A government consultation on strengthening protections against harassment in the workplace was published back in 2019, with the government committing to action in its consultation response of July 2021.

“There is undoubtably an increasing focus on the safety of women and girls in society, and an increasing recognition that the workplace is a place where women can be the most vulnerable.  As well as being put into direct contact with people who may pose a threat to someone’s safety or dignity, there is also the added aspect of employees feeling that they have no choice but to put up with what they are experiencing in order to keep their jobs. In a cost of living crisis this is, of course, particularly acute,” said Dodd.

Recent research by the Fawcett Society suggests that the protections currently offered under the Equality Act are not enough to reduce the number of harassment cases in the workplace and to drive a change in the culture around victim blaming. According to the report, at least two in five women say that they have faced harassment in the workplace last year, and women often fear the risks of reporting sexual harassment and choose not to report at all.

Employment law expert Sue Gilchrist of Pinsent Masons said that the mechanism of using private members’ bills has become an increasingly frequent means of introducing new employment law provisions.

“The government has backed several private members’ bills recently, such as the bills for carer’s leave, neonatal leave and flexible working. All things which are outstanding and which were promised,” said Gilchrist.

“While the bill has passed the second reading stage, there are still a number of parliamentary stages it needs to pass through before it can become in law. There is a risk that it won’t be given sufficient parliamentary time. The views of the recently appointed minister for women and equalities may also shift the government’s position,” she said.  

Dodd added: “The fact that PMBs are now being used as a way of seeking to introduce employment rights may reflect the fact that many of the promises around increased protection at work did not come to fruition under the previous administration.”