Beware of Harassment: the Worker Protection Bill

The Equality and Human Rights Commission (EHRC) recently announced that it has signed a binding agreement with IKEA UK following sexual harassment complaints. This follows similar agreement being signed last month with McDonalds about its handling of staff sexual harassment complaints.

The EHRC is the regulator of the Equality Act 2010 (Equality Act) in England, Scotland and Wales. It helps employers to prevent discrimination and harassment. It has investigation and enforcement powers under the Equality Act 2006 when alleged incidents are reported.

Under the Equality Act, employers are legally responsible if an employee is sexually harassed at work by another employee and the employer has not taken all reasonable steps to prevent it from happening. The Equality Act does not currently include any provision making employers liable for failing to protect employees against harassment by a third-party, however, it’s possible that if an employer knew of a third party harassing an employee, a failure to try to stop that may be construed as conduct amounting to harassment by the employer.

The EHRC intervened following a complaint about sexual harassment and assault from a former IKEA employee and complaint that the allegations were not appropriately handled by IKEA UK.

IKEA UK has entered into an agreement under section 23 of the Equality Act 2006. This kind of agreement commits an organisation to not breaching equality law and generally includes an action plan to address the issues which led to the suspected unlawful conduct. It is reported that improvements completed since at the IKEA store the complaint originated from include training in investigations and grievance handling for the People and Culture team and line managers, as well as training on IKEA UK’s code of conduct for all employees.

Harassment under the Equality Act – definitions

Harassment happens when “a person (A) .. engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating [another person,] B’s dignity. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

The harassment must be related to a protected characteristic of age, disability, gender reassignment, race, religion or belief, sex or sexual orientation (known as general harassment).

Sexual harassment happens when a person, (A) engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to above. It also occurs where B rejects or submits to conduct of a sexual nature or that is related to gender reassignment or sex which has the purpose or effect referred to above and as a result, A treats B less favourably than they would treat B if B had not rejected or submitted to the conduct.

An employer has a defence to a claim of harassment, if it can show it took all reasonable steps to prevent the harassment. This is not as simple as it sounds.

Recent case law on harassment has underlined that employers must take positive steps to prevent harassment before it occurs if they want to be able to defend harassment claims. In a recent case. Allay (UK) Limited v Gehlen, the EAT found the employer had not taken “reasonable steps” if there was a further step that should have been taken, even if the step wouldn’t have prevented the harassment. In that case, the Employment Tribunal found that the employer had an equal opportunity policy; an anti-bullying and harassment procedure and that there had been training of staff, but that it was “stale”. The EAT commented that the “policies and training do not appear to have been very impressive, even for a relatively small employer“.

Employers need to have clear and up to date harassment and or equal opportunities policies. They should ensure that their training is substantial, meaningful and regular and in order to be able to rely on the defence.

Don’t forget that the employee A who has carried out the unlawful conduct may also have a personal liability under the Equality Act.

Change is coming: a new duty and liability for employers and power for Employment Tribunals

The UK Parliament is currently considering the Worker Protection (Amendment of Equality Act 2010) Bill, which would place a new duty on employers to take all reasonable steps to prevent sexual harassment. The Bill is currently being considered in the House of Lords.

It will alsomake employers liable for the harassment of employees by third parties if they fail to take all reasonable steps to prevent the third-party harassment. The EHRC will be able to take enforcement action for a breach under its enforcement powers referred to above. Further, a complaint could be made to an employment tribunal if it finds a there has been sexual harassment.

This is a “free speech” exception for general harassment by a third party. An employer will not be treated as having failed to take reasonable steps to prevent harassment if the harassment is related to a protected characteristic (general harassment) and the relevant conduct involves a conversation in which B is not a participant, or a speech which is not aimed specifically at B, which involves the expression of an opinion on a political, moral, religious or social matter; the opinion is not indecent or grossly offensive; and the expression of the opinion does not have the purpose of violating B’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B. in such a case, the employer will not be treated as having failed to take all reasonable steps to prevent the harassment solely because they did not seek to prevent the expression of the opinion.

This is a complex exception. It is also likely to result in claims and disputes about whether circumstances quality as free speech for a defence to a claim.

Finally, if an Employment Tribunal makes a finding of sexual harassment and awards compensation, it will have the new power to increase the compensation by 25% in respect of the employer’s failure to take reasonable steps to prevent sexual harassment.

The Government Equalities office is expected produce a statutory code of practice on sexual harassment and harassment in the workplace to support the legislation.

Take Action Now

These amendments will need thought and employers will need to update their anti-harassment/equal opportunities policies to reflect the new duty, and in relation the third-party harassment for once the bill receives royal assent.

Now is also the time for employers to prepare to give the best opportunity to defend claims. In the meantime, they should review and renew their policies and the anti harassment training provided to human resources, managerial and the wider workforce to ensure their training is current, sufficient, substantial and regular to be able to rely on the “reasonable steps” defence to harassment claims under the current law. This will help make managers and employees aware of what isn’t acceptable and how to handle complaints.

Please get in touch for help with any of the above, or if you need advice about handling harassment allegations you can contact Katy here.