With the various social events that the festive period brings, employers should be aware of their duties towards employees.
With particular focus on harassment, employers should be cognisant of their duties and have in place mechanisms for dealing with high-risk situations.
Liability of employers
The starting point is that any act by a person in the course of their employment is treated as also being an act by their employer. An employer will be vicariously liable for the act, whether or not they have knowledge of it or have approved it.
‘In the course of employment’ goes beyond the workplace and extends to work related events such as Christmas/seasonal parties.
For example, if an employee (‘Employee A’) is harassed by another employee (‘Employee B’) at a work organised Christmas party, Employee A has the option to bring proceedings against Employee B and/or the employer. Commercially, it typically makes sense for Employee A to bring proceedings against an employer rather than, or in addition to, an individual.
If proceedings are brought against an employer vicariously for Employee B’s act, it is a defence to show that the employer took all reasonable steps to prevent them from doing the act. The defence sets a high bar for employers by which they must show that objectively, they have taken all steps reasonable in the circumstances to prevent such harassment.
The new duty to prevent sexual harassment
On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (‘Act’) came into force.
The Act places employers under a new obligation to take reasonable steps to prevent sexual harassment of workers ‘in the course of employment’, which adopts the same meaning as above.
There are two significant aspects to the new sexual harassment law that expands the existing legislation:
- employers have an obligation to take proactive measures to prevent sexual harassment of employees; and
- this obligation, point (1), also extends to sexual harassment by ‘third parties’.
Third parties can include clients, contractors, visitors, and other people with whom workers may interact during a social work event.
Under the Act, employment tribunals have the power to uplift discrimination compensation by up to 25% where an employer is found to have breached the new duty, and the Equality and Human Rights Commission now has the power to interject where employers fail to take reasonable steps to prevent third party sexual harassment.
Consequently, employers now need to be proactive, as well as reactive in approach given the broad application of the Act.
Employment Rights Bill
When enacted, the new Employment Rights Bill (the ‘Bill’) will extend the duty of an employer further.
It will introduce a claim that an employee can bring against their employer where the employer has failed to take all reasonable steps to prevent third party harassment. This means that harassment claims will not be restricted to sexual harassment by third parties but can include any form of harassment carried out by third parties.
The Bill also amends the new duty to prevent sexual harassment, requiring employers to take ‘all reasonable steps’ (as opposed to ‘reasonable steps’ as currently drafted).
Mechanisms for employers
In light of the above, employers should be prepared to take measures to act before an act of harassment occurs. Below are some suggested mechanisms on how best to do so.
Risk assessment
Employers should carry out periodic risk assessments, looking at where situations of harassment (in particular sexual harassment considering the new duty) are more likely to occur and consider what steps can be taken to prevent those risks. This should include transparent communication between employers and employees; employers should request and act upon suggested initiatives and recommendations from employees.
Anti-harassment policies
Employers should implement a robust and transparent anti-harassment policy which covers third-party harassment. The policy should be clearly communicated and shared with workers and third parties. The policy should be reviewed regularly and updated/amended as necessary.
Training
Regular training should be provided for all employees and managers on what harassment is, how to identify it and how to report it. It is important managers are sufficiently aware of their responsibilities towards employees and how best to deal with allegations of harassment.
Zero tolerance approach
Employers should adopt a zero tolerance approach to any kind of harassment to show that action will be taken. All employees should be aware of the consequences of being found to have harassed anyone, including a third party.
Reporting
Employers should implement confidential reporting systems for employees to report harassment. The system should be user friendly and easy to navigate in order to be effective. This provides a mechanism where employees can make reports without fear of retaliation.
Conclusion
Employers need to take proactive steps and should get ahead of the game in light of the new duty relating to the prevention of sexual harassment and in preparation for the enactment of the Bill. By implementing mechanisms sooner rather than later, employers will encourage a supportive and inclusive environment for all workers.
