Employment Rights Bill bitesize: harassment

The Employment Rights Bill was published on 10 October 2024, setting out a wide range of ambitious workplace reforms.

For an overview of the Bill, see our ‘headlines’ article.

In this series of ‘bitesize’ articles, we look at different key provisions of the Bill in more detail, consider the implications for employers and explain what the next steps will be.

Protection from harassment: what does the Bill say?

On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 came into force, requiring employers to take reasonable steps to prevent the sexual harassment of their employees during the course of their employment. Where an employer has failed to do so, a tribunal can uplift the employee’s compensation by up to 25%. The Equality and Human Rights Commission (EHRC) also has the power to investigate and take enforcement action in respect of any breach.

The new Bill will amend this legislation and go much further, requiring employers to take ‘all reasonable steps’ to prevent the sexual harassment of their employees.

Separate regulations will set out what are to be regarded as the ‘reasonable steps’ that employers should take in order to comply with their duty to take all reasonable steps to prevent sexual harassment (including third party sexual harassment). This will include carrying out risk assessments, publishing policies, taking steps relating to the reporting of sexual harassment and steps relating to the employer’s handling of complaints about sexual harassment.

The Bill will also amend existing legislation to provide that an employee reporting sexual harassment will be making a protected disclosure (meaning that the employee will be eligible for protection as a ‘whistleblower’).

As well as harassment by the employer or one of its employees, under the Bill, employers will also face direct liability if they fail to take ‘all reasonable steps’ to prevent harassment of their employees by third parties such as consultants, clients and other visitors to the employer’s premises. As currently drafted, the Bill provides that an employer could be liable for third party harassment the first time it occurs, and there will be no requirement for the employer to have been aware that the harassment took place.

Employers will also be under a duty to take ‘all reasonable steps’ to prevent third-party harassment in relation to other protected characteristics such as age and race, meaning that the duty in respect of preventing third-party harassment will be more onerous than preventing harassment carried out by their own employees, where the duty to prevent applies only in respect of sexual harassment.

What does this mean for employers?

Employers will already be implementing the changes resulting from the recent Worker Protection Act. Employers should review the new EHRC 8-step employer guide and updated technical guidance.

However, the duties imposed by the Bill and subsequent regulations will place a weightier burden on employers moving forward. It is likely that it will be much more difficult for employers to defend claims, and employers will be at risk from financial penalties in the form of uplifts in compensation and potential enforcement by the EHRC.

Employers operating in sectors such as hospitality, construction, retail and other sectors where staff will often come into contact with third parties will have particular difficulty meeting the duty to take ‘all reasonable steps’ to prevent third-party harassment. Employers may have little control over those third parties in the workplace; despite this, there is a high risk that a finding of harassment committed by a third party will result in a finding that the employer has failed in their duty.

Employers should thoroughly review their current policies and procedures on preventing harassment and carry out a risk assessment. Employers may wish to consider engaging in open discussions with their employees (or trade union representatives) to help identify potential risks and to consider any suggestions on how harassment can be prevented.

What are the next steps?

The Employment Rights Bill will be the first phase of implementing these changes. The Bill itself is unlikely to receive Royal Assent until 2025, with most reforms expected to take place in 2026 following consultation.

Employers will therefore have the opportunity to take advantage of a relatively long lead-in period in order to prepare for the changes and review existing policies and procedures. However, employers should consider the steps they are currently taking to prevent harassment to ensure compliance with their current duty under the Worker Protection Act and to prepare for the changes moving forward. Our new toolkit for employers will assist in this exercise.