There will also be a proactive duty requiring employers to take all reasonable steps to prevent sexual harassment in the workplace.
Third parties includes suppliers, contractors and customers. It is sadly still the case that many women experience sexual harassment in their roles with some sectors being more susceptible to issues arising.
Employees can feel pressured to turning a blind eye to unwanted conduct in order to keep the customer happy. The bill should facilitate employees calling out bad behaviour. In sectors where the actions of third parties are difficult to predict or manage, we could well see an increase in claims.
Harassment and the law:
Whose job is it to prevent sexual harassment in the workplace?
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Employers must take action on "normalisation" of sexual harassment
While employers are already liable for discrimination in the workplace, the bill provides that if an employer fails to take reasonable steps to prevent sexual harassment and an employee brings a successful claim for compensation, there is scope for compensation to be increased by up to 25%.
This may serve as an incentive for organisations to revisit this as a priority. It is also possible for the Equality and Human Rights Commission to seek to enforce the proposed legislation.
Employers would be well advised to start proactively identifying likely risks for their staff from third parties with a view to putting measures in place to protect them.
There are many situations where employees are in contact with third parties and at high risk of being abused. For example, the hospitality sector in the night-time economy has characteristics which mean that careful consideration will need to be given to balance the services provided to customers with the rights of employees.
The employer will have to review their operations, assess all activities and plan to avoid issues occurring if they are to avoid claims. It is important to acknowledge that all organisations will be different and avoiding a generic approach will be key.
A positive duty on employers to proactively take reasonable steps to prevent sexual harassment in the workplace will need employers to review and update training and reinforce existing anti-harassment policies. While the bill does not define what reasonable steps means in this context, there is case law which gives an indication of what is required. Trying to rely on stale equality and diversity training will not be enough.
Employers should consider a suitable system to report harassment, ensuring they properly investigate allegations in a timely manner. Displaying notices setting out what is inappropriate behaviour will reinforce the messaging. The time, effort and expense of any suggested actions will be relevant to how much can be expected but that does not mean brief superficial training will be enough.
If organisations are clear about what is expected of their staff it will not only help to reduce inappropriate behaviour but also ensure that where it happens, employees have a clear path to follow to deal with it.”
Malcolm Gregory is partner in the employment law team at RWK Goodman
