Employers will be subject to enhanced anti-harassment duties under new legislation

New duty for employers

Under the Equality Act 2010 as it stands, employers are liable for acts of harassment carried out by employees in the course of their employment, even where the employer is unaware of the employee's conduct prior to the complaint. The current law relies on employees bringing unwanted conduct to the attention of their employers, and employers have a defence available if they can show they took 'all reasonable steps' to prevent the harassment.

The Act's main function is to introduce a new duty on employers in respect of sexual harassment. When the Act comes into force in one year's time, employers will be subject to a new duty to take 'reasonable steps' to prevent employees from being sexually harassed at work by the employer or its staff.

The Act in its final form is different from the original Bill that was introduced - the proposed third party harassment provisions have been removed, and the original requirement to take "all reasonable steps to prevent harassment" has been tempered. The Act nevertheless represents an important shift towards requiring employers to take proactive steps to address sexual harassment. Employers who breach the new duty to take reasonable steps to prevent the sexual harassment of employees may also be subject to a 25% compensation uplift if the employee brings successful Employment Tribunal proceedings in response.   

What reasonable steps can employers take in preparation?

What is reasonable for any individual employer to avoid falling foul of the new duty will depend on individual circumstances and factors such as the size of the employer, the resources available to it and the sector in which it operates.

There are nevertheless some steps that all employers can take to help protect themselves. For example, it is crucial to ensure:

• all anti-harassment policies are up to date and effectively communicated
• that it is clear what types of conduct will not be tolerated
• that an open culture operates in the workplace so that staff feel able to raise any concerns as and when they arise
• that staff undergo training and understand their duties under any such policies - this can include in-person training or bite-sized eLearning designed to help prevent harassment and bullying in the workplace.

For more information regarding the Act or further Equality, Diversity and Inclusion (EDI), please contact Jo Oliver in our Employment team on 0117 314 5361. For more on our available EDI eLearning contact Imogen Street. Alternatively, please complete the form below.