As you will be aware from previous Legal Updates changes are on their way when it comes to the pro-active duty to prevent sexual harassment and employer liability for harassment of their employees by third parties.
So, what are some of the key things all businesses need to know?
- What are the changes?
- When are the changes happening?
- What should I be doing now?
1. What are the changes?
- Sexual harassment
In brief, the current pro-active duty on employers to take reasonable steps to prevent sexual harassment is set to expand to taking ‘all’ reasonable steps – this is a raising of the bar businesses will need to meet.
Whilst an employee cannot bring a stand-alone claim against their employer for breaching their duty to prevent sexual harassment, a failure to take all reasonable steps can still prove costly. If employers fail to comply with the sexual harassment prevention duty, an employment tribunal has the power to apply a 25% uplift in compensation where an employee makes a successful sexual harassment claim.
- Third party harassment
In brief, there will be an extension of the current protections for employees against harassment with employers being liable for harassment of their employees by third parties if the harassment occurs during the course of the employee’s employment and the employer fails to take all reasonable steps to prevent it. A third party could be a customer, client, visitor, service user, contractor or another attendee at a conference for example.
It is important to be aware that liability could arise for a single act of third party harassment and it applies to all types of harassment under the Equality Act – ‘standard harassment’ (for example harassment in relation to race or religion), sexual harassment or treating someone less favourably because they have previously submitted or refused to submit to unwanted conduct of a sexual nature, or that is related to gender reassignment or sex. It is possible for third party harassment to occur in-person, or some other way, for example online.
In contrast to the sexual harassment prevention duty, the duty to prevent third party harassment is actionable as a stand-alone claim by the employee against their employer. If the employee is successful in their claim the employment tribunal can order the employer to pay the employee compensation (just like with other awards of compensation under the Equality Act, there is no upper limit on the amount that can be awarded).
2. When are the changes happening?
These changes are expected to come into force on 30th October 2026.
Unhelpfully for businesses, whilst the government will have the power to make regulations specifying the steps that employers will need to take in relation to the sexual harassment prevention duty (which may also be helpful for third party harassment), it is not anticipated that such regulations themselves will come into force until 2027/28 – a significant time after the change in the law and something for which businesses should not wait.
The government has said that the Equality and Human Rights Commission (EHRC) will be publishing guidance “soon” (what they consider to be ‘soon’ remains to be seen…) and that in the meantime the existing (un-updated) EHRC technical guidance may still be useful. We will keep you updated on developments in this area, but in the meantime with the changes to the law expected later this month businesses should be getting prepared.
3. What should I be doing now?
If you are not already doing so, you should be getting ready for the forthcoming changes. In brief, as a starting point, it will be important to undertake (updated) sexual harassment / third party risk assessments and engage with staff to help you identify where potential risks lie and to create and implement an action plan. It will be important to document the decisions you make and what is done and when to help you evidence that all reasonable steps to prevent sexual harassment / third party harassment have been taken in your business.
A few things in particular to bear in mind, for many businesses:
- Training will need to be updated and refreshed for staff and managers (and appropriate steps taken in relation to third parties).
- Policies such as harassment policies should be reviewed and updated where required (there will be a further Legal Update regarding this in due course) and these should be clearly communicated, as well as ensuring employees know how to report harassment and third party harassment.
- Commercial contracts with third parties may need to be updated (for example requiring the third party to provide appropriate anti-harassment training for its staff and to provide evidence of completion if requested, warranties against harassment by the business partner’s staff). In the case of third parties such as customers and the general public careful assessment will need to be made about bringing anti-harassment obligations to their attention, for example the content and positioning of notices, and sanctions for breaches.
- Look out for sector-specific guidance issued by employer bodies and regulators.
- Monitoring for compliance and regular review will be important, the duties to take all reasonable steps are ongoing ones. In addition to periodic reviews to assess whether further reasonable steps have become available and whether existing steps remain effective, reviews should take place after incidents, ‘near misses’, staff feedback or material changes to work, third-party relationships or guidance for example.
- If any complaints about harassment are made it will be important to ensure they are dealt with appropriately and effectively.
We will keep you updated on developments. In the meantime, if you have a HR issue that is troubling your business please do not hesitate to get in touch as we are happy to help.