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Preventing sexual harassment in the workplace

The government is supporting a Private Members’ Bill to bring back employers’ liability for harassment of employees by third parties at work, as well as introduce a new duty to prevent workplace sexual harassment.

A government consultation on strengthening protections against harassment was published in 2019, with a commitment to action appearing in the 2021 response to that consultation. The Worker Protection (Amendment of Equality Act 2010) Bill will impose a specific legal duty on employers to take all reasonable steps to prevent sexual harassment of their employees at work and will make employers potentially liable for harassment of their employees by third parties (e.g. customers or clients).

Instead of employers being relieved of vicarious liability for their employees if they have taken ‘all reasonable steps’ to prevent employees carrying out acts of harassment, the Bill imposes a positive duty on employers to take such steps. Although employees cannot bring a standalone claim that an employer has failed in this duty, if harassment is found to have taken place, the employee could be entitled to an uplift in their compensation (up to 25%) where there has been a breach. This new duty can also separately be enforced by the Equality and Human Rights Commission against employers.

The Bill also re-instates the potential for liability for an employer where employees are subject to harassment by a third party, even a third party over whom the employer does not have direct control. Liability will be triggered on the first incident of harassment by a third party, if the employer has failed to take all reasonable steps to prevent it. This liability will apply regardless of whether the employer has approved, or is even aware of, the actions of the third party. These protections would apply to all acts of third-party harassment in the workplace, for example racial as well as sexual harassment. There will be no other conditions attached to this third-party liability – the previous ‘three strikes’ requirement for there to have been previous incidents of harassment will not be reintroduced.