The Worker Protection (Amendment of Equality Act 2010) Bill is now on its second reading in the House of Lords and is close to being given Royal Assent. Whilst its provisions will not come into force for another year after being passed, businesses should start preparing now for the changes it will bring.
Under the current provisions of the Equality Act 2010, an employer is liable for discriminatory acts, including sexual harassment, committed by employees in the course of employment. This remains the case unless the employer can show that all reasonable steps were taken to prevent the employee concerned from committing a particular discriminatory act.
This obligation will now be extended in relation to sexual harassment. A positive obligation will be placed upon the employer to prevent sexual harassment in the workplace. In addition to this, an Employment Tribunal will have the ability to apply a discretionary compensation uplift of up to 25 percent in cases of sexual harassment where there has been a breach of the employer’s duty. Bearing in mind the uncapped compensation and “injury to feelings” awards which can be substantial in sexual harassment cases, the impact of this could be significant.
Breach of this duty will not give rise to a standalone complaint in the Employment Tribunal; however, enforcement action may be taken by the Equality and Human Rights Commission.
In addition to this, the concept of vicarious liability of employers for harassment of its employees by third parties has been reinstated and simplified, following its repeal in 2013. Previously, an employee had to show two previous incidents of harassment before an employer could be held liable. This was referred to as the “three strikes” rule. Under the proposed measures in the Bill, there is no longer a “three strikes” requirement and a business will be liable in respect of third-party harassment if it has “failed to take all reasonable steps to prevent the third party from doing so”. The definition of third parties is broad ranging and can include anyone else that employees come into contact with in the course of their employment.
This duty is not simply limited to sexual harassment either. It will cover harassment in respect of all the protected characteristics.
Whilst these provisions are unlikely to come into force for another year, businesses are advised to start preparing now by reviewing their current policies and procedures designed to safeguard against harassment in the workplace. Ensuring regular training for employees and managers will be vital, particularly in light of recent case law which found that an employer had failed to take reasonable steps when relying on training that had occurred 20 months previously and was considered to be “stale”.
Feel free to contact our solicitors if you need legal advice regarding compliance in your workplace when the new provisions come into effect.
Jennifer Al-Janabi is an employment solicitor with over 17 years of experience in employment tribunal litigation, discrimination claims and unfair dismissal. Jennifer also has considerable experience in drafting and advising on settlement agreements. Jennifer is a member of The Employment Lawyers Association. To contact Jennifer, visit the Contact Us page. For media enquiries: info@dphlegal.com