Survey data consistently highlights that instances of sexual harassment in the workplace are surprisingly common. In a poll by the Trades Union Congress 52% of women said they had experienced harassment at work.

Furthermore, there is a constant train of headlines in the news on this subject including, more recently, allegations relating to McDonalds, Starplan and the CBI business group. 

There is currently no clear protection for those harassed by third parties at work and no proactive duty on employers to try to prevent sexual harassment. However The Worker Protection (Amendment of Equality Act 2010) Bill will deal with these issues is currently working its way through the House of Lords. We have previously commented on this, in December 2022 and March 2023, but as the issue of sexual harassment in the workplace is a regular news item we summarise this bill again below.

What will the Bill do?

Firstly, an employer will be liable where clients, customers and other third parties harass an employee during the course of their work and where the employer has failed to take all reasonable steps to prevent such harassment. This does not just apply to sexual harassment – protection from third party harassment relates to all protected characteristics. Liability for harassment by third parties will arise without there needing to be a prior incident unless the employer can show they took all reasonable steps. What is reasonable will depend on the circumstances including the size and resources of the employer but it might, for example, include requiring customers to follow the employer’s equality and diversity and anti-harassment policies.

Secondly, the bill introduces a proactive duty to take all reasonable steps to prevent the sexual harassment of its employees in the course of their work and it strengthens that proactive duty by (i) providing for enforcement via the Equality and Human Rights Commission (EHRC); and (ii) employment tribunals will have discretion increase an award by up to 25% in sexual harassment cases where the employer has failed to take all reasonable steps.

We know that EHRC investigations can attract negative publicity and take up significant management time. A recent example of this was when the EHRC investigated the handling of sexual harassment complaints made by staff at McDonalds. Furthermore, the 25% uplift could be considerable bearing in mind that the average sex discrimination award in 2021 in employment tribunals was nearly £25,000, and the highest was £184,000.

If passed, the new law will therefore mean employers will be far more exposed to claims than previously. Separate blogs about recent examples of sexual harassment in the workplace will follow over the course of this week.