UK: Employers should be aware of the third scenario

in short

The Employment Rights Bill (ERB) imposes a new requirement on employers to protect employees from harassment by third parties during the employment process. Once in effect, the requirement will apply to harassment based on any protected characteristic, not just sexual harassment. This is a broad obligation as the employer must take all reasonable steps, not just reasonable steps.

• Nothing in the ERB changes the immediate scope or extent of employers’ new obligation to take reasonable steps to prevent sexual harassment, which will come into effect on October 26, 2024. The obligation will be enforced by the EHRC, which has said it will also consider sexual harassment by third parties.
• However, the ERB will extend this obligation to require employers to take all reasonable steps to prevent sexual harassment. The regulation is not expected to take effect until 2026.
• Additionally, the ERB will establish a new protection against third-party harassment that will apply to all Types of Harassment. The regulation is not expected to take effect until 2026.
• Third parties include clients, customers, suppliers, workplace visitors and the public.
• Employers will be held liable for any third party harassment unless they can prove they have taken all reasonable steps To prevent this from happening. Employees can enforce this provision by bringing a claim to the Employment Tribunal (not the EHRC).
• There is a clear crossover between the steps required by the specific obligation to take (all) reasonable measures to prevent sexual harassment and the new protections against harassment by third parties.
• This will vary depending on the nature of the employer’s business, but at a minimum employers will need to carry out a detailed risk assessment to identify the various risks in their business, including the risk of third party harassment occurring, and outline the risks of third party harassment occurring. These risks will be avoided or mitigated.
• Compliance with this obligation may have a significant impact on relationships with customers, contractors and suppliers and will require a review of policies, procedures and reporting mechanisms to ensure they are fit for purpose. Employers also need to consider the risk of situations arising in the course of employment whereby employees may be exposed to unintentional and accidental third party harassment.

Duty to protect employees from harassment by third parties

The lack of protection against third-party harassment has been a significant flaw in the Equality Act 2010 since the previous provisions were repealed in October 2013. Therefore, employees currently have no independent rights to bring claims against their employers for harassment by third parties.

The ERB fills this gap by introducing specific protection measures all Third-party forms of harassment that can be committed directly by employees. Unlike previous formulations of third-party harassment protection, harassment does not need to have occurred at least twice before in order to be caught. Employers are judged on whether they took all reasonable steps to prevent harassment, not on whether they took steps that were reasonable or reasonably practicable.

Article 16 of the ERB provides for the following changes:

In section 40 (Employees and applicants: harassment) of the Equality Act 2010, after subsection (1) insert—
“(1A) Employer (A) shall not permit third parties to harass A’s employees (B).
(1B) For the purposes of subsection (1A), A permits a third party to harass B only if:
(a) A third party harasses B in the course of B’s ​​employment with A, and
(b) A fails to take all reasonable steps to prevent the third party from doing so.
(1C) In this section, “third party” means a person other than: (a) A, or (b) an employee of A. “

This is much further than employers expected as they prepared to tackle third-party harassment as part of new obligations to prevent sexual harassment. Obligations relating to sexual harassment (enforced by EHRCs rather than employees as stand-alone complaints) have been further extended to cover all Reasonable steps.

What does this mean in practice?

Employers have a duty to take reasonable steps to prevent sexual harassment, which will come into effect on 26 October 2024 and all employers should continue to prepare for this. However, if the ERB is passed in its current form, it will represent a significant shift as it imposes increased responsibility for “all” reasonable steps.

Additionally, a third party harassment provision would effectively create a similar requirement to take all reasonable steps to prevent third party harassment in relation to any protected characteristic.

In preparing for this, employers can draw on some of the guidance on sexual harassment provided by the EHRC to prepare for this new obligation. Listed below are some examples of reasonable steps that may be taken, although much will depend on the nature of the workplace and the specific type of third-party harassment an employee may encounter in the course of their employment. In addition to considering third parties operating within the framework of a contract with the employer, employers may also need to consider the risk of third party harassment at workplace socials, industry conferences and external training events.

A third party is broadly defined as a person other than the employer or an employee of the employer. This brings about a wide range of interactions, which is very challenging because harassment covers both intentional and unintentional conduct.

Employers need to conduct a detailed risk assessment to identify the risks of third-party harassment occurring, how such steps can be avoided and where avoidance is inevitable and how these risks can be mitigated. The nature of risk varies widely by industry, employer and business unit. In addition to customers and suppliers, employers may also have to consider risks associated with specific situations, such as workplace meetings, external training and social events on work schedules.

Some employers may find that they already have a range of measures in place as part of their duty to provide a safe workplace (e.g. they have lone workers or workers in areas where alcohol is served or who interact with the public in hazardous situations) . particularly dangerous). However, these risk assessments need to be updated and revisited in the light of new obligations that require all reasonable steps to be taken, not just reasonable steps.

Policies and procedures need to be reviewed to ensure they address third-party harassment and how this is reported. Employees should also be made aware of available sources of support.

Employers need to review their arrangements with customers, contractors and suppliers to ensure their terms of business clearly prohibit third-party harassment. Consideration needs to be given to where employees come into contact with customers, contractors or suppliers and the most effective way to demonstrate the employer’s commitment to preventing third-party harassment (for example, through signs, notices or terms of business).

Employees at all levels of the organization need to be trained to recognize and respond to third-party harassment. Managers have a special obligation to intervene when they see harassment by a third party. The role of bystanders is crucial to fulfilling this obligation.

Leaders need to set the tone that any form of third-party harassment will not be tolerated and that appropriate action will be taken when such harassment is detected. Since employers should take all reasonable steps to prevent third-party harassment, leaders may want to consider warning or even banning offending customers, contractors or suppliers and removing employees from contact with them.

timing

The ERB has had its first reading in the House of Commons and now needs to go through the rest of the legislative process to receive royal assent. As with typical employment legislation, further details of many of the ERB’s policies, including those relating to harassment, will be provided through regulations and EHRC guidance or codes of practice subject to Royal Assent. If consultation is required, it is not expected to take place before 2025, and the government does not anticipate reforms before 2026.

generalize

The absence of any requirement for repeated third-party harassment, coupled with the requirement to take all reasonable steps to prevent it, places a heavy burden on employers. To meet this obligation in advance, employers should prioritize conducting a risk assessment or updating an existing risk assessment to understand the scale of potential risks and how to prevent or reduce the risk of third-party harassment.