ERA Explained: Anti-harassment reforms – Understanding the new employer requirements

So first up, what we have is a change to the existing duty to prevent sexual harassment. Currently, an employer is under a duty to put in reasonable steps to prevent the sexual harassment of their workers whilst at work. And this is changing, it’s only a little word, but it’s changing so that employers will be required to put in place all reasonable steps to prevent sexual harassment. So that’s change number one.

The second change is that an employer will be liable if a worker is harassed by a third party whilst at work, if the employer had not put in place all reasonable steps to prevent that harassment from arising. And importantly, that relates to harassment on the grounds of all relevant protected characteristics, not just sexual harassment.

Now, as I said, both of those changes are coming into force on 30th of October, but we’ve not finished there because finally, rules around the use of non-disclosure agreements are also going to be changing, but those won’t come into play until next year. But we will look briefly at those changes too in this podcast.

Right, so let’s take a look at our first clip. And in this section, we’re talking about the changes to the duty to prevent sexual harassment and that move to implementing all reasonable steps. And we’re discussing how a tribunal might go about assessing whether or not a step is reasonable. And I’m discussing that with Katherine Flower, one of my colleagues in the team. And what we’re looking at is the reasonable steps that an employer might put in place to advertise a reporting line through which staff can report concerns of sexual harassment.

Kate Redshaw (02:56)

So, I’ve got my reporting line, I advertise it, for the sake of argument, on all the staff notice boards. I advertise it very clearly on the intranet. All my staff have access to those. I haven’t got anybody who doesn’t have access to the internet or the staff notice boards.

Now, does that mean, because what I could do is I could go around everybody’s locker and stick a sticker on all of those lockers saying don’t forget our reporting line. Do think there are arguments where I could say well actually that may be a step, but it’s not a reasonable step?

Katherine Flower (03:28)

I think that’s right. I mean, it is tricky because the original duty is new-ish law so we’re only now starting to see claims come through. And we don’t really know how the employment tribunal is going to approach this. It’s worth saying that the EHRC technical guidance that Lizzie mentioned actually has a list of factors that may be relevant when assessing reasonableness, in it. So those include size of the employer, nature of the working environment, the likely effect of taking a particular step, the time and cost of taking a particular step against what that would achieve and so on. So I guess it seems logical that a tribunal would look at the reasonable steps in the round to determine if all reasonable steps have been taken in addition to looking at any particular step in isolation to see whether that’s reasonable.

So if we go back to your locker example, if you didn’t have posters on the notice board and on the intranet, then it may very well be reasonable for you to put stickers on lockers. If however, you had put all those other steps in place, then I think an employment tribunal would need to consider whether putting stickers on lockers is really going to reduce the risk of harassment in any meaningful way. And actually, if the answer is no, because the reporting system is well known, it’s well advertised, then I don’t think a failure just to put stickers on lockers is necessarily going to be a breach of the duty. But we’ll have to wait and see what tribunals do.

Kate Redshaw (05:09)

So hopefully you got a few useful pointers there. Now next up is an interesting discussion because it’s one that comes up a lot and that is what are the reasonable steps that an employer can take to comply with this duty and my colleague Jamie Cameron tells us more.

Kate Redshaw (05:29)

What I’d like to move on to now, which is probably the question we get asked the most, I think is, is there a list? Show me the list of reasonable steps I can take and I will do it. Where might I find that list, Jamie?

Jamie Cameron (05:41)

Well, I’d love to be able to give you that list, as you say, it would make life easy for everyone. But the key message is there is no definitive list. So it goes back to what we’ve all been saying, I think what’s reasonable is going to depend on each organisation. So considering a range of factors, Katherine’s talked about, size, sector, whole other range of factors. And the key thing is you’re going to need to properly apply your mind to identify what risks are specific to you as an organisation and then what steps you can reasonably take to prevent sexual harassment occurring.

So I suppose to put some colour behind that in terms of specific risks that might exist. And as say, will vary between organisations, but you might have lone workers working out in the field, coming into contact directly with customers, third parties. You might have employees who have to attend social events outside of work, again, perhaps with third parties. Presence of alcohol is often an indicator of a higher risk. And people working at night. So there’s a whole range of different risks that might apply to specific-

Kate Redshaw (06:45)

As well I guess as the culture of your organisation and the leadership.

Jamie Cameron (06:50)

The makeup of the work. Yes, the work environment. Yes, so exactly. There’s a whole range of different things that you need to apply your mind to in terms of what you as an organisation, where your risks most present. And then it’s thinking about what steps you can take to prevent them. And even if – it’s probably unlikely two organisations would have the same risk, but even if they did- the steps that they might each be expected to take might well be different because that of itself would depend on a whole range of factors. So again, size, sector, make-up of the workforce, the cost, there’s a whole range of different factors.

Kate Redshaw (07:27)

So we’re now going to move to look at the new duty to prevent third party harassment. And in particular, what’s interesting is what is meant by third party. Lizzie Buckley, one of our associates, explains.

Kate Redshaw (07:44)

So just to be super clear. This is a little bit different to harassment where a worker, one worker has been harassed by another worker. In this one it’s succeeding where there’s a third party and…

Lizzie Buckley (07:59)

And where you fail to take reasonable steps to prevent it.

Kate Redshaw (08:04)

Okay, so it’s not just showing that there was harassment by a third party, the worker has to show that the employer didn’t take all reasonable steps.

Elizabeth Buckley (08:14)

And that’s really important and two points to flag there is that third parties cover all parties that your workers are going to come into contact with. So it’s quite wide ranging. We’re thinking clients, suppliers, customers, members of the public. So it’s quite a wide range.

Kate Redshaw (08:30)

Because it’s not defined, is it? There is a definition which sort of says there is no definition. If that make sense. I mean, it is anybody and everybody.

Elizabeth Buckley (08:42)

Yes exactly, provided it’s in the course of employment. Yes exactly, that’s the point. And then also I think this legislation applies to all protected characteristics.

Kate Redshaw (08:49)

Good point.

Elizabeth Buckley (08:51)

The duty we were just looking at in terms of that’s preventing sexual harassment. Yes. Whereas liability for third parties is across all protected characteristics.

Kate Redshaw (08:59)

Right, so race, age, disability and so on.

Elizabeth Buckley (09:02)

Exactly. It’s more wide ranging here.

Kate Redshaw (09:04)

That’s really helpful.

Kate Redshaw (09:06)

So Lizzie talking about third party harassment was a helpful reminder that harassment has a specific legal definition. And as an aside, Jamie does talk about that definition in some detail in the webinar. So if you want to know more about that, do take a look at that. And as I mentioned, the webinar is available in full on our ERA hub.

And one thing that’s interesting is it’s not always easy to assess whether someone’s behaviour or conduct meets that legal definition. So in our next section, Katherine gives examples of how this can be challenging.

Kate Redshaw (09:42)

It’s quite a complex legal test actually, isn’t it? Sometimes it’s very clear if that test has been met. But Katherine, sometimes it isn’t as clear. And, I just wonder if you could share a couple of examples, maybe in a third party context, if that would be possible?

Katherine Flower (10:01)

Yes, yes. Well, if we start with an example that’s really clear.

Kate Redshaw (10:05)

Yes.

Katherine Flower (10:06)

So that might be a caller into a call centre making derogatory sexual remarks to the call handler. I think that most people would say that’s quite straightforward and that would meet the legal test. What about though, if we had a visitor to site, so a contractor coming on site, walking up to the reception desk and complimenting the receptionist on their outfit. That’s perhaps a little bit more difficult. Is there a difference between saying that you like someone’s outfit, like, I like your blouse. Is there a difference between saying that and then saying, well, it suits you or it fits well. What if I were to say it fits you really well or I really like it on you? It all becomes really quite nuanced and difficult, which we come back to Jamie’s test.

I think the key point here is if you receive a complaint as a good employer, you’re, of course, going to want to respond to it appropriately. But it is worth spending a little bit of time assessing whether or not you think the behaviour or remark complained of actually reaches that threshold. Because as Jamie said, actually, there may be some remarks, some behaviours that are really quite offensive but don’t quite meet that legal test.

Kate Redshaw (11:26)

Moving on then to have a quick look at the final reform I mentioned at the start and that’s the restriction on the use of NDAs. Now this isn’t happening until next year but NDAs will be strengthened and Jamie tells us a bit more about what’s happening in this next clip.

Kate Redshaw (11:45)

So Jamie, I want you to please, if you wouldn’t mind, just finish up quickly so we’ve got a little bit of time for questions as well on the changes to non-disclosure agreements, in particular the fact it may be more difficult to ask employees to sign confidentiality agreements if you’re settling a claim where harassment and discrimination allegations have been raised.

Jamie Cameron (12:06)

That’s right, and that’s exactly why it’s relevant, because I suppose typically during settlement discussions, confidentiality is a key point. There’s been a concern over recent years about potential misuse of confidentiality clauses, gagging clauses, particularly where it’s hiding systemic issues of harassment. So there have been some restrictions introduced, and currently you can’t use confidentiality wording to prevent reporting to police or to regulators or to whistleblowing. But exactly as you said, Kate, the Employment Rights Act is going to extend that further. And the sort of starting point when it was first announced was that there’s just going be a ban on any sort of confidentiality clauses that prevent employees speaking out about discrimination, harassment, or alleged discrimination or harassment, or even an employer’s response to it.

So starting point is that they would be void. I think there has been a recognition that positions are a more nuanced and actually that some employees and victims of harassment may want the benefit of confidentiality. So there’s been a consultation on how the ban is going to operate in practice. That closed in July. We’re waiting to see exactly what the response to that is. But I think the proposals at the moment is that confidentiality clauses will be void unless they’re included in what’s known as excepted agreements. And then there’ll be specific criteria that those excepted agreements will need to meet, which again will need to be defined in the response to the consultation. But it’s likely to mean that employees are going to have much greater say over whether confidentiality clause is included or not. It’s going to be key that they have advice on the effect of the wording. And there’ll probably be a broadening of the group that they’re allowed to make disclosures to, picking up sort of family and friends and other things like that.

Kate Redshaw (13:57)

And so let’s hear Katherine’s response to a question about how to approach a risk assessment where different parts of your business present different risks.

Kate Redshaw (14:08)

In our organisation we operate across several different departments including office staff, retail staff and warehouse staff. Would we need a risk assessment for each department and can our reasonable steps be different to suit each department.

Katherine Flower (14:24)

think it can all be part of one risk assessment. But I think if you have got different risks that apply in respect to those different groups of people, those should absolutely be identified. And it may very well be- It was a point I think actually Lizzie picked up earlier. It may very well be that you would need to put in place different preventative measures because of the particular risks that affect that group. So I think that it can be part of the overall risk assessment, one overall risk assessment but I think it is right to have identified these different populations within your workforce, and that might very well lead to different risks and therefore different preventative steps.

Kate Redshaw (15:01)

Such an interesting area. So that brings us to the end of this podcast. We’re going to be sticking with the theme of harassment for our next episode where Katherine Flower will be discussing how your contractual and other arrangements that you might have in place with your suppliers may be affected given the changes to third party harassment. So do look out for that shortly. In the meantime, that’s it from me. Thanks so much for joining and don’t forget to check out our resources on our ERA hub, including the webinar in full. And if we can help your organisation with anything we’ve talked about on this podcast, in the webinar, or indeed more widely in relation to the ERA or employment law more generally, please don’t hesitate to get in touch. Thank you.