A Change in Employer Responsibilities
The Government has placed its support behind the Worker Protection (Amendment of Equality Act 2010) Bill, which has had its first reading in the House of Lords in February. The bill, once passed, will re-introduce liability of employers for harassment of their workers by third parties. An employer will be deemed liable for harassment where it fails to take reasonable steps to prevent the harassment. An employer will not have failed to take all reasonable steps to prevent harassment solely because it does not seek to prevent the expression of opinion in conversations or speech where:
- The harassment is not sexual harassment.
- The employee harassed is not a participant in the conversation, or the speech was not aimed specifically at that employee.
- The conversation or speech involves the expression of an opinion on a political, moral, religious or social matter.
- The opinion expressed is not indecent or grossly offensive.
- The expression of the opinion does not have the purpose of violating an employee’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee.
Changes will also be made to the vicarious liability provisions within the Equality Act 2010, removing vicarious liability in respect of a worker’s failure to take reasonable steps to prevent the harassment of another worker, in circumstances where the above ‘opinion defence’ applies.
Importantly, a positive duty to prevent sexual harassment of employees will be established, which will require proof that all reasonable steps to prevent such harassment has been taken. A breach of that duty will be capable of enforcement either by the Equality and Human Rights Commission or via an uplift to any tribunal award made in respect of a successful sexual harassment claim under the Equality Act 2010 against the employer of up to 25%.
The General definition of harassment contained within the Equality Act 2010 is as follows:
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
Violating B’s dignity, or
Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The above general definition only applies in relation to unwanted conduct related to one of the “relevant” protected characteristics set out in provisions of the Equality Act 2010 relating to harassment. These are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. There are different definitions for “conduct of a sexual nature”.
It is always important to note that a one-off incident can amount to harassment.
Taking Reasonable Steps to prevent Harassment
An employer will avoid liability for the discriminatory actions of its employee if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act (such as harassment). To succeed with a reasonable steps defense, the employer must have taken such steps before the act of discrimination or harassment occurred.
Policies, Procedures and Training
Generally, employers are not legally required to have an equal opportunities or equality policy, but it is recommended by the Equality and Human Rights Commission as good practice. Employers should also ensure that they have in place an effective anti-harassment policy, which is regularly reviewed and brought to the attention of all staff.
Employers should promote and publicize their equality and anti-harassment policies as widely as possible using:
- Email bulletins.
- The intranet and website.
- Induction packs.
- Team meetings.
- Office notice boards.
- Circulars and newsletters.
- Annual reports.
The EHRC Code sets out that the policies should have the explicit backing of senior employees in the business, such as the owner, chief executive, or board of directors. Senior management should ensure that the policies are implemented, resourced, monitored, and reviewed, and that there is regular reporting on their effectiveness. Further, the EHRC harassment guide stipulates that employees should also be given the opportunity to evaluate the effectiveness of the policies through regular staff surveys.
It is likely that the existence of policies may assist employers in establishing reasonable steps being taken in the workplace to protect its employees against discrimination and harassment. However, the mere existence of an equal opportunities policy and anti-harassment and bullying policy is not sufficient; employers must be able to show that they have implemented their policies effectively through staff awareness, regular training and taking appropriate disciplinary action against the perpetrators of discrimination.
The changes to the legislation with the Worker Protection (Amendment of Equality Act 2010) Bill highlights the importance of having the correct policies and procedures in place but more importantly, a real focus by businesses and employers to ensure regular training and monitoring takes place to clamp down on discrimination and harassment in the workplace.
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