Tightening harassment laws will place a significant burden on employers
Significant changes around protections in the workplace appeared on the horizon last October that would require employers to take 'reasonable steps' to prevent sexual harassment of their employees.
The Employment Rights Bill is now progressing through parliamentary stages and is expected to gain royal assent in the summer; it will take employee protection to the next level and place a substantial burden on employers.
This impending legislation will force employers to take 'all' reasonable steps to prevent sexual harassment, introduce third-party harassment liability and ensure that disclosures of sexual harassment are explicitly covered under whistleblowing legislation. And the government is considering whether sexual harassment protections should be extended to volunteers, although there are no confirmed timescales for implementation on these changes and they are not expected to take effect before 2026.
The government's intention behind strengthening the duty by adding the word 'all' is clear — it aims to mirror the existing concept of the 'all reasonable steps' defence in the Equality Act 2010. However, that earlier legislation does not specify which steps are deemed reasonable for an employer, making it challenging to rely on this defence in discrimination claims.
To bridge this gap, the bill proposes future regulations that will define the reasonable steps employers must take and the considerations they must account for to prevent sexual harassment.
Once enacted, employers will be deemed to have taken 'all' reasonable steps if they adhere to the specified regulations and undertake any other preventive measures that are reasonable given the circumstances. Potential steps, as suggested by the government, include conducting risk assessments, publishing policies or plans, and establishing procedures for reporting and handling complaints.
As a result, employers will need to update their risk assessments regularly and audit their policies and procedures to cover potential areas of risk adequately. These requirements will undoubtedly place a substantial burden on employers, necessitating a more thorough approach to managing sexual harassment in the workplace.
Employers must continue to be vigilant in preventing and addressing sexual harassment under the current law, ensuring they are well prepared for the impending strengthened duty. Failure to do so could be costly and result in a potential 25 per cent increase in compensation where an employee successfully files a sexual harassment complaint.Naeema Choudry is a partner at the law firm Eversheds Sutherland
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