In brief
The Employment Rights Bill (ERB) introduces a new requirement for employers to prevent third party harassment of employees in the course of their employment. Once in force, this requirement will apply to harassment because of any protected characteristic not just sexual harassment. It is an extensive obligation because employers must take all reasonable steps rather than just reasonable steps.
- Nothing in the ERB alters the immediate scope or extent of the new employer duty to take reasonable steps to prevent sexual harassment, which comes into force on 26 October 2024. This duty will be enforceable by the EHRC, which has indicated that it will also consider sexual harassment by third parties.
- The ERB will, however, extend the duty to one requiring employers to take all reasonable steps to prevent sexual harassment. This is not expected to take effect until 2026.
- Separately, the ERB will create a new protection from third party harassment, which will apply to all types of harassment. This is also not expected to take effect until 2026.
- Third parties will include customers, clients, suppliers, workplace visitors and members of the public.
- Employers will be liable for any third party harassment unless they can show they have taken all reasonable steps to prevent this. This will be enforceable by employees via a claim to the employment tribunal (not by the EHRC).
- There will clearly be a crossover between the steps required under the specific duty to take (all) reasonable steps to prevent sexual harassment and the new protection from third party harassment.
- What this will entail will vary according to the nature of an employer’s business but, as a minimum, employers will need to carry out a detailed risk assessment to identify the various risks in their business including the risks of third party harassment occurring and outline how it will avoid or mitigate those risks.
- Compliance with this obligation is likely to have a material impact on relations with customers, contractors and suppliers and will require review of policies, procedures and reporting mechanisms to ensure that they are fit for purpose. Employers will also need to consider the risk of situations arising in the course of employment where employees may experience harassment by third parties that is inadvertent and unexpected.
Obligation to protect employees from third party harassment
The absence of protection from third party harassment has been a significant gap in the Equality Act 2010 since the previous provisions were repealed in October 2013. As a result, employees do not currently have a free-standing right to bring a claim against an employer because of harassment by third parties.
The ERB fills this gap by introducing specific protection from all forms of third party harassment that employees can enforce directly. Unlike previous formulations of third party harassment protection, there is no requirement for harassment to have taken place on at least two prior occasions for it to be caught. The employer is judged according to whether they have taken all reasonable steps to prevent harassment rather than whether they have taken such steps as were reasonable or reasonably practicable.
Clause 16 of the ERB sets out the following change:
In section 40 of the Equality Act 2010 (employees and applicants: harassment), after subsection (1) insert—
“(1A) An employer (A) must not permit a third party to harass a person (B) who is an employee of A.
(1B) For the purposes of subsection (1A), A permits a third party to harass B only if—
(a) the third party harasses B in the course of B’s employment by A, and
(b) A failed 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 goes much further than employers were expecting when preparing to address third party harassment as part of the new duty to prevent sexual harassment. The duty in relation to sexual harassment (which is enforceable by the EHRC rather than employees as a free-standing complaint) has been further extended to encompass all reasonable steps.
What will this mean in practice?
A duty on employers to take reasonable steps to prevent sexual harassment comes into force on 26 October 2024, and all employers should continue to prepare for this. However, if the ERB is passed in its current form this will represent a significant shift by strengthening the duty to “all” reasonable steps.
In addition, the third party harassment provisions will 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 upon some of the guidance offered by the EHRC in relation to sexual harassment to prepare for this new obligation. Examples of some of the reasonable steps that might be taken are set out below, although much will depend on the nature of the workplace and the specific types of third party harassment that employees may encounter in the course of their employment. In addition to considering third parties who operate within a contractual framework with the employer, employers may also need to consider the risk of third party harassment at workplace socials, industry conferences and external training events.
Third party is broadly defined as a person other than the employer or an employee of the employer. This brings a wide range of interactions in scope which is very challenging, given that harassment covers both conduct that is intentional and unintentional.
Employers will need to carry out detailed risk assessments to identify the risk of third party harassment occurring, how such steps can be avoided and where they cannot be avoided, how they will be mitigated. The nature of the risks will vary considerably by sector, employer and business unit. As well as customers and suppliers, employers may also have to consider the risks associated with specific situations, for example, workplace conferences, external training and social events arranged by work.
Some employers may find that they already take a number of steps as part of their duty to provide a safe place of work (e.g., where they have lone workers or workers who interact with the public in areas where alcohol is served or in situations that are particularly hazardous). However, those risk assessments will need to be refreshed and revisited in the light of the new obligation which requires all reasonable steps to be taken not just reasonable steps.
Policies and procedures will need to be reviewed to ensure that they address third party harassment and how to report this. Employees should also be made aware of the sources of support that are available.
Employers will need to review their arrangements with customers, contractors and suppliers to ensure that their terms of business specifically outlaw third party harassment. The points at which employees come into contact with customers, contractors or suppliers will need to be considered along with the most effective means of signposting the employer’s commitment to preventing third party harassment (e.g., through signs, notices or terms of business).
Staff at all levels of the organisation will need to be trained to identify and respond to third party harassment. Managers will have a particular obligation to intervene where they see third party harassment. The role of the bystander will be critical in complying with the obligation.
Leaders will need to set the tone that third party harassment in all its forms will not be tolerated and that appropriate action will be taken where it is identified. As employers will be expected to take all reasonable steps to prevent third party harassment, leaders may need to consider warning or even banning offending customers, contractors or suppliers and withdrawing their employees from contact with them.
Timing
The ERB has had its first reading in the House of Commons, and will now need to pass through the rest of the legislative process before receiving Royal Assent. As is typical with employment legislation, further detail on many of the policies in the ERB including those relating to harassment will be provided through regulations and EHRC guidance or codes of practice after Royal Assent. Where consultation is necessary, this is not expected before 2025, and the government anticipates that reform will not happen before 2026.
Summary
The absence of any requirement for the third party harassment to be repeated, coupled with the requirement to take all reasonable steps to prevent it, places a significant burden on employers. In order to get ahead of the obligation, employers should consider carrying out a risk assessment or refreshing existing risk assessments as a priority in order to understand the scale of the potential exposure and how the risk of third party harassment can be prevented or reduced.