The Employment Rights Bill: enhancing the duty to prevent harassment

The Employment Rights Bill (the Bill) contains new and enhanced duties to prevent harassment and to protect employees who make disclosures regarding sexual harassment.

Building on the duty to prevent sexual harassment

Since 26 October 2024, employers have been required to take ‘reasonable steps’ to prevent sexual harassment in the workplace. The Employment Rights Bill 2024 (the Bill) proposes to elevate this obligation, mandating that employers take ‘all reasonable steps’ to prevent sexual harassment.

It is anticipated that regulations will specify what are to be regarded as the reasonable steps an employer should take, or has failed to take, in terms of preventing sexual harassment.

As is the case with the existing ‘reasonable steps’ duty, the heightened duty will necessitate a proactive and comprehensive approach to identifying and mitigating the potential risks of sexual harassment. However, it will inevitably become much more difficult for employers to successfully defend a sexual harassment claim.

Liability for Third-Party Harassment

The Bill reintroduces employer liability for harassment perpetrated by third parties, such as clients, customers, or contractors. Employers will be held accountable if they fail to take all reasonable steps to prevent third-party harassment of their employees. This provision applies to all forms of harassment related to protected characteristics, not solely sexual harassment.

For employers operating in sectors where their staff frequently come into contact with third parties, this duty will be particularly difficult to meet. Employers have far less control over the actions of third parties than over those working for them.

To mitigate risks, employers will need to:

• Clearly outline acceptable behaviour for third parties and the consequences of breaching policy.
• Incorporate clauses in relevant contracts that require third parties to adhere to anti-harassment standards.
• Establish procedures for employees to report third-party harassment and ensure prompt, appropriate action is taken.

Taking proactive measures in these areas can help create a safer workplace and reduce potential liabilities.

See our earlier article ‘Third-Party Harassment & The Employment Rights Bill: A Guide’ for more information.

Whistleblowing protections for reporting sexual harassment

The Bill amends existing whistleblowing legislation to provide that it will be a ‘protected disclosure’ for an employee to report that sexual harassment has occurred, is occurring or is likely to occur.

This change ensures that employees who report sexual harassment are safeguarded against retaliation, including dismissal or other detrimental treatment. Employers must handle such reports with confidentiality and care, ensuring that whistleblowers do not face adverse consequences for coming forward.

Further, contractual terms which purport to preclude the making of a protected disclosure about sexual harassment will be void, meaning that such disclosures will be excluded from the scope of confidentiality provisions in contract of employment, non-disclosure agreements and settlement agreements.

How employers can prepare for the changes

To comply with these enhanced obligations, employers will need to:

• Ensure that anti-harassment policies are comprehensive, up-to-date, and effectively communicated to all employees and third parties.
• Provide regular training sessions that educate employees and management about recognising, preventing, and responding to harassment.
• Create accessible and confidential channels for employees to report harassment and ensure that all complaints are addressed promptly and thoroughly.
• Regularly assess the workplace environment and the effectiveness of anti-harassment measures, making adjustments as necessary to improve safety and inclusivity

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