What every HR professional should know about…..harassment legislation in 2023 and beyond…!

What better way to ease yourself into the New Year than with our Employment Team’s three-part bite-size summary of the changes HR professionals can expect to see in the coming months.

If you missed Part 1 on how employers can prepare for the anticipated increase in wages you can view this here.

In Part 2, we explore the changes to harassment legislation in 2023 and beyond.

The prevention of workplace harassment is taking centre stage this coming year. In response to the Women and Equalities Committee's consultation into workplace harassment, the government has backed the Worker Protection (Amendment to Equality Act) Bill (Worker Protection Bill). 

This proposes two important changes to harassment legislation:

  1. it will impose a new duty on employers to take all reasonable steps to prevent employees from experiencing sexual harassment in the workplace; and
  2. it will re-introduce employer liability for third-party harassment. 

 The onus this time round is on prevention rather than redress. 

Third-party harassment

The concept of employer liability for third-party harassment was originally introduced into the Equality Act when it first came into force in October 2010. Under this provision, the employer was liable for an employee’s harassment by a third party if it had known of at least two other previous incidents of harassment but did nothing about it. 

This “three strikes and you’re out” provision was subsequently considered to be too onerous and was repealed in 2013. 

Fast-forward to 2022 and the re-imagined legislation will see the employer potentially liable for a single incident of third-party harassment of employees and job applicants. This is the case even where the employer has no direct control over the third party. This means that harassment by a third party has the same legal standing as harassment by a colleague.  

Whilst employers will have a defence if they can show that they took all reasonable steps to prevent harassment, unlike the original legislation (which enabled employers retrospectively to put measures in place to prevent third-party harassment once they became aware of it), such steps will need to be in place from the very outset if the defence is to be effectively relied on. 

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Sexual harassment

The Worker Protection Bill also introduces a particular (and new) duty on employers to take all reasonable steps to prevent sexual harassment in the workplace. To underscore the importance of this, compensation can be uplifted for failure to take such steps. Furthermore, any failure to comply with the new duty will be specifically and directly enforceable by the Equality and Human Rights Commission. 

The government is currently developing a statutory Code of Practice to set out the steps organisations can take to prevent harassment and this should be read alongside the technical guidance published by the EHRC in January 2020. 

Other potential changes to watch out for….

  • The government may legislate to require employers to provide a basic reference for any former employee. It plans to consult on this “in due course”. 

A consultation into extending time limits for bringing discrimination claims from three to six months closed in October 2022. 

  • The responses are being assessed and there is a possibility that we may see a change in due course. 
  • In a recent newspaper report, Rishi Sunak indicated that he might review the Equality Act to make it clear that references to “sex” means biological sex rather than gender. If so, this could leave those who self-identify as a particular gender without the legal right to access facilities associated with their chosen gender. 

How to prepare?

  • Review your Equal Opportunities and Anti-bullying and Harassment Policies and update them to include references to third-party and sexual harassment. 
  • Audit third-party contracts (e.g. with suppliers, and distributors) to ensure that protections, indemnities and termination provisions dovetail with the new obligations to prevent third-party harassment. 
  • When it is published, review the Statutory Code of Practice to familiarise yourself with the types of steps that might be considered “reasonable” for the “reasonable steps” defence. 
  • Arrange training (and refresher training) for staff on equal opportunities and harassment issues. 
  • If in doubt, take legal advice!

For more information on any of the above issues, please contact Prettys’ Employment Team on 01473 232121 or by clicking on our contact us link.

Sheilah Cummins
Senior Associate