Recent research by the Fawcett Society[i] suggests that the protections afforded by the Equality Act 2010 (‘the Act’) are insufficient to reduce the number of sexual harassment cases in the workplace. According to the report:
- At least 40% of women experience sexual harassment during the course of their career.
- 45% of women in a recent survey reported experiencing harassment online through sexual messages, cyber harassment and sexual calls.
- Almost a quarter of women who had been sexually harassed said the harassment had increased or escalated since the start of the pandemic while they were working from home.
Prior to 2013, the Act placed obligations on employers to protect their employees from harassment by third parties (such as customers, suppliers, visitors etc.). This was repealed in 2013. Prior to this repeal, employers needed to be aware of two previous incidents of third-party harassment before they could be considered liable for that harassment. Now, the Worker Protection (Amendment of Equality Act 2010) Bill (‘the Bill’), a Private Member’s Bill, is currently working its way through Parliament. If the Bill becomes law, it will lead to a reintroduction of employer’s liability for the harassment of staff by third parties.
On 21 October 2022, the government announced that it would support the Bill, which would:
i. create employer’s liability for third-party harassment; and
ii. introduce a duty on employers to take all reasonable steps to prevent sexual harassment of their employees, making provision for the enforcement of that duty and providing for a compensation uplift (not exceeding 25%) in sexual harassment cases where there has been a breach of the employer duty.
The creation of employer’s liability for third-party harassment increases the scope for employers to be held liable for harassment of their employees by third parties beyond the previous provisions which were repealed in 2013. The provisions in the Bill contain no requirement for there to be two or more incidents before an employer can be held liable.
The Bill is scheduled to have its report stage and third reading on 3 February 2023.
What steps should employers be taking now?
There is still some way to go before this Bill becomes law. In the meantime, employers are advised to:
- Comply with the guidance published by the Equality and Human Rights Committee in 2010 to tackle and respond effectively to sexual harassment. This guidance is expected to become statutory in due course.
- Provide regular diversity, equity and inclusion training to staff.
- Put in place methods to detect harassment (including third party harassment) such as exit interviews and external reporting systems.
- Ensure all relevant policies (particularly diversity, equity and inclusion, bullying & harassment and disciplinary policies) are up to date and be ready to make amendments to those policies if the Bill becomes law.
By introducing the above steps and enhancing any existing measures, employers will not only reduce the level of sexual harassment in the workplace but also increase their ability to show that they are taking all reasonable steps to prevent sexual harassment of their employees. If you require support in taking the steps referred to above or require training for your employees, please contact a member of our employment and HR team.
[i] The Fawcett Society (2020) Tackling Sexual Harassment in the Workplace: Report on employer actions to prevent and respond to workplace sexual harassment. Available at https://www.fawcettsociety.org.uk/news/over-40-of-women-experience-sexual-harassment-in-their-working-lives