Existing law
Employees are currently protected against harassment committed by their employer (s.26(2) EqA 2010).
However, modern workplaces mean that many workers often interact with third-party contractors or partner organisations during their working days. Frequent interaction with customers is also of course common for many, and high-profile companies such as Ikea and McDonalds have recently signed up to agreements with the Equality and Human Rights Commission (the Commission) relating to sexual harassment policies.
Harassment (that is, unwanted conduct related to a protected characteristic creating the proscribed environment) of an employee, committed at work by a customer or employee of such third-party organisation, would not be caught under existing provisions.
Impending changes to the law
The Worker Protection (Amendment of Equality Act 2010) Bill (presently – March 2023 - at stage 2 reading in the Lords) will give that protection to workers.
The Bill will add the following to the EqA 2010, s.40:
“The circumstances in which A is to be treated as harassing B under subsection (1) include those where—
(a) a third party harasses B in the course of B’s employment, and
(b) A failed to take all reasonable steps to prevent the third party from doing so.
(1B) A third party is a person other than—
(a) A, or
(b) an employee of A’s.”
The Bill will also impose on employers a positive duty to prevent sexual harassment of employees.
This requirement will not be enforceable per se via an Employment Tribunal claim, but where a claim of sexual harassment is made out, an ET must consider contravention of the positive duty when determining any appropriate remedy, with the power to increase any award by up to 25%.
The second of these two changes will be enforceable by the Commission.
What does it mean for employers and employment lawyers?
First, the basic tenets of a harassment claim have not altered. Though the potential scope of persons who may be capable of committing the act has increased, those persons must still engage in unwanted conduct, related to a relevant protected characteristic, and which creates the proscribed environment (s.26(1)(b) EqA 2010).
Second, whilst the positive duties imposed by the Bill on employers concerns sexual harassment, the provisions enabling enforcement via individuals and the Employment Tribunals extends to all those protected characteristics to which harassment claims can presently be brought. It is reminded that this does not include marriage and civil partnership or pregnancy and maternity. It is only where the harassment claim related to conduct of a sexual nature will the increased remedial powers apply.
Third, the likely battle ground for employment lawyers will be the ‘all reasonable steps’ phrase – that is, when will an employer have failed to have taken all reasonable steps to prevent a third party from harassing an employee?
The employer has no direct control over the third-party, no disciplinary or other similar measures can be brought to bear against the putative discriminator. Further, the employer may have no independent knowledge at all of the circumstances in which the acts take place.
Will all reasonable steps extend to seeking to understand the policies of customers or contractors? Will it extend to understanding the active measures put in place by those bodies to combat and prevent harassment at work? Will it extend to requiring, for instance, changes to who or how any particular business interactions takes place? Will it extend to requiring employers to not do business with another if it could not be reasonably satisfied that harassment would not occur?
At present, it is probably right that having policies, which it can be shown were actively and effectively being disseminated with relevant third-parties, and which were being implemented and endorsed, will be key.
Further, presently within the Equality Act, an employer may defend a claim on the basis that it took ‘all reasonable steps’ to prevent an employee from doing the thing that the Claimant contends constituted the discriminatory act (s.109(4) EqA 2010).
It may be that the case law assessing that terminology will be turned to by Tribunals seeking to give effect to the Bill’s provision. If so, the EHRC Code provides an example of a policy being disseminated, managers trained and an offending employee being disciplined. As with that defence, the Bill’s provision will require an employer to demonstrate what action it took prior to the act occurring – taking remedial action after the act will not be sufficient.
Other relevant factors in determining if ‘all reasonable steps’ were taken will include likelihood of the step being effective at preventing harassment from occurring, cost and practicability. That latter factor will be particularly important given the usual toolkit available to an employer with regards to its employees will not be as available.
