The Worker Protection (Amendment of Equality Act 2010) Bill was introduced last year as a Private Members Bill and is supported by the government. As originally drafted, it pledged to protect staff from (a) harassment committed by third parties and (b) introduce a new duty on employers to prevent sexual harassment. The third party provisions have been removed and the duty to prevent sexual harassment has been watered down to prevent the Bill failing.
What has changed?
The original draft imposed a new duty on employers to take all reasonable steps to prevent their staff from being sexually harassed at work but the Bill has been redrafted so that employers now have a duty to take reasonable steps to prevent their staff from being sexually harassed at work.
What’s the difference between taking all reasonable steps and reasonable steps?
More than you might think! The Equality Act contains a provision under which employers can avoid liability for harassment carried out by their staff if they can show they took all reasonable steps to prevent it from taking place. To establish this an employer has to take every reasonable step they can. This means that if an employee (or tribunal) can point to a reasonable step that could have been taken, but wasn’t, then an employer will still be vicariously liable for the harassment suffered. It’s often difficult for even large employers to meet this test.
By contrast, demonstrating that an employer has taken reasonable steps to prevent sexual harassment under this new duty should, in theory at least, be easier. Employers will still have to show that they’ve taken reasonable steps but they probably won’t be penalised for not taking every reasonable step.
Does that mean that employers will be held to a lower standard when dealing with sexual harassment claims?
No. In the context of sexual harassment claims, employers will only be able to avoid being held vicariously liable for the actions of their staff (or other people under their control) if they can show they have taken all reasonable steps to prevent them from doing it. In that respect, the law is not changing.
However, if a claimant succeeds with their claim against an employer, the tribunal will go on to consider whether they have also failed to comply with the new duty to take reasonable steps to prevent sexual harassment. If it finds against an employer on this, then it can award the claimant additional compensation of up to 25% of their compensatory award.
When does the new duty to prevent sexual harassment come into force?
These provisions are expected to come into force 12 months after the Bill receives Royal Assent. Therefore, it’s possible that it will come into force in the Autumn of 2024. We’ll keep you posted.