Employment Rights Bill unpacked: tougher stance on workplace harassment

The Employment Rights Bill represents a significant overhaul of the UK's employment law framework. Among its many provisions, the Bill introduces substantial changes to harassment laws.

Current law on harassment

The Equality Act 2010 defines harassment as unwanted conduct related to a protected characteristic (such as age, disability, race and so on) that has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. 

Sexual harassment is defined separately as unwanted conduct of a sexual nature which has the same purpose or effect.

Employers are liable if one of their members of staff harasses a colleague. There is a defence if the employer can show it took “all reasonable steps” to prevent the employee from doing that thing or from doing anything of that description.  Historically, this tended not to be relied on in practice, either because employers lacked evidence of the steps they had taken or because they wanted to support the alleged harasser. This may start to change now there is a new duty to prevent sexual harassment.

From 26 October 2024, employers are required to take "reasonable steps" to prevent sexual harassment. This is an anticipatory duty - unique to sexual harassment - which requires employers to take action to prevent sexual harassment before it happens.

The Equality and Human Rights Commission (EHRC) takes the view that the anticipatory duty covers sexual harassment from customers, clients and other third parties, and that they can take enforcement action on that basis.  At the moment, however, workers cannot bring a tribunal claim against their employer for harassment by third parties. A previous law which made employers liable for third party harassment was repealed in October 2013. 

Changes introduced by the Employment Rights Bill

The Bill introduces several key changes aimed at strengthening harassment protections in the workplace. 

Liability for third-party harassment

The Bill makes employers liable if their employees are harassed by third parties in the course of employment. Employers will be liable unless they can demonstrate that they took “all” reasonable steps to prevent the harassment. 

This applies to every type of harassment - not just sexual harassment.

Under the previous (repealed) law, employers were only liable if the employee had been harassed by a third party on two previous occasions. The Bill, however, puts the focus on what the employer has done to prevent the harassment from happening rather than on whether it has happened before. Employers will be liable the first time harassment happens.  As well as being different from the previous law, this is also out of line with civil and criminal liability under the Protection from Harassment Act, which requires a “course of conduct” before an individual can be liable.

Stronger anticipatory duty to prevent sexual harassment

The Bill requires employers to take "all reasonable steps" to prevent sexual harassment, raising the bar from the current standard of "reasonable steps." 

What constitutes "all reasonable steps" is not defined. Regulations will list certain steps that are to be regarded as reasonable, but this will still leave room for employment tribunals to decide that additional steps should have been taken in the circumstances. 

How far this will raise the bar in practice remains to be seen. Will it be enough for employers to follow all the steps in the latest EHRC guidance? 

The new test will essentially mirror the employer’s defence. We anticipate that many employers who intend to argue that they complied with the anticipatory duty will also rely on the employer’s defence, as the test is so similar.  This means that if the defence fails and they are found liable for the sexual harassment, they will be found to have breached the anticipatory duty as well. 

Whistleblowing about sexual harassment

The Bill adds disclosures about sexual harassment to the list of topics that can qualify as protected whistleblowing. 

This is arguably more of a clarification than a change.  Employees can already blow the whistle about sexual harassment and say that it falls within one of the other topics in the list, such as non-compliance with a legal obligation or a health and safety risk.  

The change does not mean that any complaint about sexual harassment automatically counts as whistleblowing. A worker is only protected if they disclose information to an appropriate person (usually the employer or regulator in the first instance) and reasonably believe this to be in the public interest. Tribunals might be prepared to take a broad view of what’s in “the public interest” in sexual harassment cases - especially where large or “household name” employers are concerned – but this will remain the key hurdle for employees wanting to claim whistleblower protection.

Does having whistleblower protection really make much difference to someone who raises a sexual harassment issue? The Equality Act already protects them against victimisation/retaliation (with no public interest test). The key difference is that a whistleblower can apply for “interim relief” when claiming they are being dismissed for whistleblowing. If a tribunal thinks they are likely to win their claim, it can order the employer to re-instate them or at least pay their full salary until the final hearing. 

Another key feature of whistleblower protection is that settlement agreements and NDAs are void to the extent that they attempt to prevent a worker from whistleblowing.  Although it was already good practice to exclude disclosures about sexual harassment from NDAs, it will now be more difficult to argue that an NDA can validly stop someone from disclosing information about sexual harassment.  

Practical impact

The biggest change here is the introduction of liability for third party harassment. 

Employers in sectors such as retail and hospitality will face the biggest impact - but almost all employers will be affected to some degree.  What will it take to show that you have taken all reasonable steps to prevent third parties from harassing your staff? This is the key question and, while the regulations may clarify things to some extent (at least as regards sexual harassment) they will only be a minimum. All employers (especially larger ones) will be at risk of a tribunal deciding there was something more they reasonably should have done. This will be particularly difficult for business who require their staff to work with members of the public, where the employer will have very little advance control over the behaviour of third parties.  It represents a significant strengthening of the law compared to the current position.  

A potentially tricky issue is what happens if a worker overhears comments by a customer on a social or political issue that they perceive as offensive.  Liability for third party harassment was debated last year and did not get introduced mostly because the debate got bogged down in disagreements on how this issue should be dealt with.  This issue is likely to be discussed again as the Employment Rights Bill progresses through parliament.

The current EHRC guidance does not include a huge amount of detail when it comes to practical steps employers can take to stop third parties harassing staff.  Benchmarking good practice with others in similar settings will be important for employers. Measures we’ve been advising on and are seeing companies adopt include:

• adding wording to contracts with third party suppliers,
• asking other businesses for details of their sexual harassment risk assessment and prevention measures if staff are going to be working at their premises, 
• training for managers on how to respond to third party harassment,
• policies and training for staff on third party harassment, how to look out for each other and speak up, 
• introducing an “Ask for Angela” type scheme – e.g. giving staff code words to use if they feel vulnerable in a situation with third parties,
• adding signage,
• adding policies to their website.

An investigation into third-party harassment is also different from an investigation that involves only staff members.  The third party accused of harassment will have no obligation to participate in any investigation process, nor to keep it confidential.  Without input from the third party, an employer may decide that there is not enough evidence to decide that harassment took place, but there is a risk of a Tribunal taking a different view if the employee brings a claim.  

Next steps

The government has committed to a phased approach to implementing these changes, with detailed consultations expected to begin in 2025 and most reforms not anticipated to take effect until 2026. You therefore have some time to get ready for the changes.  

In the meantime, it is important to focus on compliance with the anticipatory duty to prevent sexual harassment which is already in place from 26 October this year.  It may be worth doing so with an eye on the future changes and aim to take “all” reasonable steps where possible.  The changes are coming in a couple of years, the current EHRC guidance expects a lot from employers already and, perhaps most importantly, it is good practice to protect your people from workplace harassment as much as you can.

A key feature in meeting the new duty is going to involve the education and engagement of your staff. This is an ideal opportunity to highlight the culture of your business and the behavioural expectations of your staff, driven by your policies.  Training around sexual harassment should factor in your business and workforce, to make it as relevant as possible. Managers should be trained on their role in challenging inappropriate behaviours and supporting staff who need to raise complaints, and staff should be trained on what sexual harassment actually is and where to go for support. Engaging with your staff and your staff networks to establish their feedback on this topic is vital – you can’t identify every possible risk but walking in the shoes of your staff will go a long way to identifying unseen problem areas. The continued education and training of your people sends a message about the importance of this topic and helps create a workplace environment where people feel safe to report issues and issues are then dealt with effectively.  If you need any support, please contact Lucy Hendley who can talk you through the training we offer.

For details about what else is in the Employment Rights Bill, see our dashboard and for more information about the new Labour government’s wider reform agenda see our Labour Policy Impact Hub.