Government responds to concerns over third-party harassment duty in the Employment Rights Bill

Background

The Government is proposing a new legal duty requiring employers to take all reasonable steps to prevent harassment of their staff by third parties such as customers, clients or contractors. This forms part of the Employment Rights Bill currently progressing through Parliament.

Earlier this year, a Parliamentary committee raised concerns that the proposals could go too far, particularly in situations involving overheard remarks or where the employer had no prior knowledge of any issues. The committee also questioned why further regulations are only planned for sexual harassment, and how the new duty will sit alongside existing obligations.

Key points from the government response

In its response, the Government confirmed that it does not intend to amend the Bill and believes the proposed duty strikes the right balance between protecting employees and being realistic about what employers can control. The following points were clarified:

• No exemption for overheard remarks: the Government has rejected suggestions that employers should not be responsible for overheard third-party comments. It states that the duty to take all reasonable steps gives employers the flexibility to assess what is appropriate in different workplace contexts.
• No return to the ‘three strikes’ rule: under previous law, employers could only be held liable for third-party harassment if there had been at least three prior incidents. The government does not intend to reinstate this rule, arguing that it created unnecessary complexity and was out of step with the wider shift towards prevention.
• Sexual harassment regulations: the Bill allows for future regulations setting out what employers must do to prevent sexual harassment. The government says these will only be introduced where supported by evidence. It does not plan equivalent regulations for other forms of third-party harassment.
• Interaction with existing law: the new duty is intended to complement the existing requirement to take reasonable steps to prevent sexual harassment under current equality legislation. Enforcement is expected to fall within the remit of the Equality and Human Rights Commission (EHRC).

Learning points for employers

If passed in its current form, the new duty will require employers to take all reasonable steps to prevent third-party harassment of staff. This marks a shift from previous legislation and places a stronger emphasis on proactive prevention rather than responding only after incidents occur.

Unlike the repealed ‘three strikes’ rule, the proposed duty does not require employers to have prior knowledge of repeated incidents before taking action. Employers will be expected to assess the risks relevant to their own settings and take proportionate preventative measures based on those risks.

Although detailed guidance may follow once the legislation is in force, now is a good time for employers to review their policies, staff training, reporting procedures, and any areas of third-party interaction. This includes considering how customer, client or contractor behaviour is managed, and whether staff feel confident raising concerns.

Preparing early will help employers demonstrate compliance with the new duty once implemented and support a safer and more respectful working environment.

For more information or advice, please contact Alastair Fatemi in our Employment team on 0117 314 5236, or complete the form below.