Having done so, it announced in 2019 it would create a new positive duty upon employers to take steps to prevent workplace harassment and would introduce protections against harassment by third parties (visitors and customers, for example) so that employers could be liable if they had failed to take all reasonable steps to prevent such harassment.
Four years later, the proposals seem no closer to becoming law.
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Although the government supported a Private Members’ Bill which introduced these changes, it also sought to water down the Bill and now, with the House of Lords having introduced further amendments, it looks unlikely it will pass.
Yet employers should already be taking steps to protect staff against harassment by customers, visitors and other third parties, as part of their duty to provide a safe working environment. What does that look like?
Risk assessment
Employers should assess the risk posed to staff of harassment/abusive behaviour by third parties and identify measures to reduce the risks.
Public-facing staff are at greater direct risk, but don’t forget staff who deal with suppliers, handle social media accounts and are responsible for client relationships, all of whom will face different risks.
Policies and training
Employers should have clear policies on handling such behaviour, including how employees report it, who will investigate any issues and how they will be resolved.
Staff should be trained on the policy, and, in some cases, public-facing staff should receive regular training on how to handle harassment or abusive behaviour in the moment.
Contract terms
Don’t shy away from using your financial clout to protect staff. It may be sensible to stipulate conduct standards for suppliers who work on your premises or interact with your staff, so that any harassment, offensive or discriminatory remarks or behaviour is grounds for termination.
Workplace discussions
One of the major controversies of the Bill is whether employers will be liable if staff are offended by remarks made by third parties or other staff but not directed at them – does it create a ‘snowflakes’ charter’?
The government’s amendments were seemingly intended to prevent this by stating that overheard conversations about political and social issues would not constitute harassment (other than sexual harassment), provided they were not targeted at a particular employee and were not indecent or grossly offensive.
Although this would water down the Bill’s protections, there is a logic to this in some working environments, such as hospitality, where customers are likely to have alcohol-fuelled conversations and employers can’t realistically prevent staff overhearing.
As for staff, employers are not expected to prevent staff discussing controversial topics altogether, but whether or not the Bill becomes law, policies should emphasise the need to avoid offensive language.
The developing law on protected beliefs in the workplace (for example, in the Maya Forstater and Allison Bailey cases) means that employees and employers can be expected to tolerate contrary opinions, so long as they do not cross the line into harassment.
Workplace policies on diversity and inclusion and social media should seek to strike this balance.
Alexandra Mizzi is legal director at Howard Kennedy
