On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023, passed under the previous Conservative government, will come into force, introducing a new proactive duty on employers to take reasonable steps to prevent sexual harassment in the course of employment.

The Employment Rights Bill (ERB), introduced to Parliament on Thursday 10 October 2024, contains provisions amending the law around harassment, including in relation to the duty coming into force later this month.

The relevant changes contained in the ERB are as follows:

1. Strengthening the duty to require employers to take ‘all’ reasonable steps to prevent harassment

When the Worker Protection (Amendment of Equality Act 2010) Act 2023 was making its way through Parliament, it contained an obligation on employers to take ‘all’ reasonable steps to prevent sexual harassment of its employees, but the word ‘all’ was removed during parliamentary debate.

Labour’s manifesto was clear that they intended to strengthen the duty and that is exactly what the ERB does by reinserting the word ‘all’, thereby bolstering the obligation to a preventative duty to take ‘all’ reasonable steps. This test will mirror the existing defence in s.109(4) of the Equality Act 2010 under which employers are responsible for any act of harassment committed by their employees, unless they have taken ‘all reasonable steps' to prevent it.

Whilst amending the duty will place a stronger burden on employers, it will help to simplify disputes concerning sexual harassment by having one test.

Further, the ERB provides that regulations may be introduced specifying what steps are to be regarded as ‘reasonable' for the purpose of determining whether an employer has taken, or failed to take, all reasonable steps to prevent sexual harassment of an employee. The steps that may be specified under such regulations include, among others (a) carrying out assessments of a specified description; (b) publishing plans or policies of a specified description; (c) steps relating to the reporting of sexual harassment; and (d) steps relating to the handling of complaints. The regulations may also set out matters which an employer is required to have regard to when taking those steps.

2. Protection of disclosures relating to sexual harassment

The ERB also amends whistleblowing legislation to specifically include sexual harassment as a protected disclosure. Whilst arguably disclosure of sexual harassment is already covered by current whistleblowing legislation, this puts the matter beyond doubt and illustrates the direction of travel to tackle non-disclosure of sexual harassment in the workplace.

3. Re-introducing third-party harassment

Separate to the new duty to prevent sexual harassment, the ERB will introduce employer’s liability for harassment of their staff by third parties e.g. customers, suppliers etc. Importantly, this new provision is not limited to sexual harassment. The new liability for third-party harassment will apply to all relevant protected characteristics under the Equality Act 2010. For employers in certain industries where staff members have regular contact with the public and/or third-party contractors, this will bring significant change.

Liability for third-party harassment was originally included in the Worker Protection (Amendment of Equality Act 2010) Act 2023 and was then subject to substantial revision before being removed in its entirety by a House of Lords amendment. This was due to the Conservative government's concerns that employers may introduce policies that infringe upon freedom of speech to protect themselves in response to this duty. It is likely that similar arguments will arise during parliamentary debate on the ERB this time around too.

Protection from third-party harassment has existed in various forms over the years. Under a previous iteration of the law, there was a ‘knowledge of two previous occasions’ qualification that had excluded employer liability for one-off incidents of harassment, but no such qualification is included in the ERB.

Whilst there is currently no legal right for an employee to bring a claim against their employer for third-party harassment, the Equality and Human Rights Commission (EHRC) recently confirmed that it can take enforcement action against an employer who it finds has failed to prevent sexual harassment of its employees by third parties. For more information on this point, please see here.

Next steps

The government has confirmed that it expects to begin consulting on the reforms contained in the ERB in 2025, and anticipates that the majority of reforms will take effect no earlier than 2026. It may be that the current proposals are subject to change as they progress through Parliament. In the meantime, employers should be preparing for the new preventative duty coming into force later this month. When conducting risk assessments, it would be helpful for employers to be mindful of the potential changes to the duty which are contained in the ERB, assuming that they come into force as planned.

We recently delivered a training webinar which explained the new duty to prevent sexual harassment in more detail, including the EHRC guidance, and what reasonable steps might look like in practice. Please get in touch with Jamie Meechan or your usual Burness Paull contact if you would like specific advice for your organisation, including access to our webinar recording, as well as a copy of the slides and a template sexual harassment policy (which has been updated to reflect the updated EHRC guidance).

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