Employment Rights Bill 2024: New Harassment Protections

On the 26^th October 2024, new legislation came into force requiring employers to take “reasonable steps” to prevent sexual harassment of its employees. Whilst breach of this duty will not give rise to a standalone claim, employers who fail to take “reasonable steps” could be required to pay a successful Claimant an uplift on their compensation by up to 25%.

As a result of this legislation, employers are now expected to take a proactive approach to preventing sexual harassment. It is interesting to see that so soon after the new legislation comes into force, the Bill expands on the existing protection proposing that employers will be required to take “all reasonable steps” to prevent sexual harassment.  The Bill also state that new regulations are proposed to explain what would amount to a “reasonable step”.

Employers should already be prepared for the new legislation which came in on 26^th October.  This includes taking steps such as having appropriate policies, regular training sessions for employees and clear reporting channels for complaints and grievances.  The shift in language to “all reasonable steps” raises the bar for employers. We know from existing related case law that this is a high hurdle for any employer.  Whilst this is a win for employees, the proposals will likely prove costly and time-consuming for employers to comply with and even more so if they fail to take steps.

The Bill adds a new obligation on employers to take all reasonable steps to prevent harassment of employees by third parties during the course of the employee’s employment.

A third party means anyone other than the employer or its employees.  This will include, for example, customers and clients. Furthermore, the duty on employers is to prevent all harassment – not just sexual harassment (as currently required). Although, what amounts to a “reasonable step” is still yet to be seen.

Whilst this proposal significantly benefits employees, it will be onerous on employers, who will again need to comply with all appropriate preventative steps or risk breaching this duty.  Carrying out an audit of their employee’s interactions with third parties to identify risk areas will be an essential element of what will be expected.

Finally, the Bill also proposes to add a new protected disclosure for the purposes of whistleblowing.  Any disclosure that “sexual harassment has occurred, is occurring or is likely to occur” and which is made in the public interest will be considered a qualifying disclosure and subsequently, may be protected under whistleblowing legislation.

Confusingly, existing legislation already allows for disclosures of sexual harassment to be protected. However, explicitly stating this and making the protection more obvious may encourage employees to calling out sexual harassment.

As with any proposed legislation, the Bill is not the final version.  As the Bill progresses through both Houses of Parliament, it will be subject to various amendments, which will hopefully add further clarity as to how these protections will work in practice.  In addition, it is likely we can expect secondary legislation and codes of practice to be forthcoming.

The Government has indicated that it does not expect the changes to be enacted until 2026, following consultation.  Whilst it might appear there is little that can be done to prepare, we think employers could start by reviewing the work they are already doing to comply with recently introduced preventative duty to take reasonable steps to prevent sexual harassment.  It seems very likely that the duty will be enhanced to take “all” reasonable steps in due course and so employers can only benefit from taking steps now whilst they audit existing polices and practices.

On Thursday 28 November 2024, we will be hosting a webinar to discuss the implications of the Bill and how employers can begin to prepare for the upcoming changes. Click here to sign up.