New duties on employers to prevent sexual harassment in the workplace have come a step closer. A private members bill has had its second reading in the House of Commons and, with government support, it stands a good chance of becoming law.
This is a private member’s bill promoted by Liberal Democrat MP, Wera Hobhouse and builds on the government’s 2019 consultation and its promise in July last year to strengthen the law in this area.
The bill proposes two major changes to the Equality Act. The first introduces a new duty on employers to prevent workplace sexual harassment. The second would bring back employers’ liability for harassment of employees by third parties such as customers or clients.
The duty to prevent harassment is different from the current defence in the Equality Act whereby employers escape vicarious liability for their employees if they have taken “all reasonable steps” to prevent employees carrying out acts of harassment. Instead, there would be a new positive duty on employers to take all reasonable steps to prevent the harassment from happening in the first place. This is bolstered by giving tribunals the power to apply an uplift of up to 25% on compensation awards where the duty has 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. The previous third-party liability provisions in the Equality Act were repealed in 2013 as part of the then government’s cuts to red tape to reduce the regulatory burden on businesses. The new bill would mean 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.
One aspect of the new positive duty to prevent harassment will undoubtedly be around staff training. That has always been important but, in the past, it has tended to be a reactive step taken by employers who have faced harassment claims. If the bill gets through, the emphasis will change with a greater focus on employers rolling out training programmes on a much more proactive basis, with HR taking the lead no doubt. So, let’s hear more about that. Trish Embley is our Head of Client Training, and she joined me by video link from Birmingham to discuss that. I started by asking Trish what she makes of the bill:
Trish Embley: “To me it is just building on what I would say is the existing direction of travel in terms of what employers are obliged to do with harassment in the workplace and particularly anti-harassment training. So, we had not so long ago and EAT decision, Allay Limited v Gehlen, that basically said you can’t take a ‘tick box’ approach to preventing harassment in your workplace. I think they put it quite nicely in that judgement where they said it is not good enough to get your employees together and say, ‘come on everyone, don’t harass each other, not back to work’. So, when we look at this term ‘prevent’ it has got to be outcome focused. So, I think many employers are looking at anti-harassment training and they might, for example, produce 15 minutes of e-learning for their employees. Now the question I would ask there is whether that is actually going to change culture and outcomes. I think it is a great starting point, I think you can get across some of the complex issues that have to be considered around where is the line drawn with banter, what is the relevance of intent, however, I think we are going to have to take that to the next stage and by that, I mean discussing things like harassment in team meetings or workshops or on-site gatherings and meetings because there are a lot of complex issues in harassment. There is that balance with not wanting to work in a sterile work environment and many of our clients, in their values, will talk about bringing your whole selves to work and how work should be a fun place, so it is really, I think, going that next stage with prevention in terms of a deeper dive into training around behaviours, what you can do, what the outcome of any action might be and particularly, I think, offering those who are victims of harassment a lot of comfort about why this will not be career limiting, this isn’t a negative thing for you to do, it’s something that the organisation want people to speak up on and they are encouraging people to speak up, and demonstrating that, how they are creating that culture.”
Joe Glavina: “Can I ask you about reputation, Trish? Previously harassment training has been used as evidence to support an employer’s ‘reasonable steps’ defence in the tribunal. Going forward, when this new duty comes in, employers will be at risk of being ‘called out’ by anyone, potentially, who thinks they are failing in their duty. Do you agree?”
Trish Embley: “Yes, absolutely. We‘ve seen over the years that reputation and keeping to ‘brand values’ have overtaken, I would say, employers’ concerns about litigation. So, again with this proactive duty becoming this sort of stand-alone mandatory duty it will, I think, raise the profile of the importance of employers actually taking positive steps in the workplace to change the culture and to combat harassment. I think as that awareness is raised more people will be prepared, whether that be through social media or the broader media itself, to speak up and say look my employer isn’t complying with the statutory duty and even if they don’t bring tribunal claims I think that in itself will be a driver for employers to say look this has got to become a real priority now for us.”
Trish mentioned e-learning. We do have a pair of e-learning modules on the subject of sexual harassment, one for employees and one for managers which take roughly 40 minutes to complete, and which include a number of exercises throughout, and questions to test understanding. As to cost, we don’t operate the typical subscription model that you see with the vast majority of e-learning courses on the market which base the cost on the number of users. Instead, all the modules come with a licence for an unlimited number of users which means hundreds of people can all be trained for a one-off purchase cost, with the option to repeat the training as many times as you like without any further cost. The two harassment modules cost £3,750 each. Included for that cost is a degree of tailoring – adding your organisation’s logo throughout and including your organisation’s policies and procedures and any other documentation you'd like to add.
If you would like to have a closer look at any of the modules you can, we are offering a free demonstration so please do get in touch if this might be something you want to consider for your staff. Contact details are on the screen for you.