Article written by Noella Gooden, Employment Solicitor (Australian qualified)
New legislation is set to place greater responsibility on companies to protect employees against harassment, including sexual harassment.
Employers are being urged to act in readiness, with the proposed legislation set for its third reading in February 2023 and expected to become law during the next year.
Harassment in the workplace is prohibited under the Equality Act 2010 and once passed, the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 will extend the range of safeguards for employees. One is protection against third party harassment during the course of their employment, such as by customers or clients, and the employer may be held liable if they fail “to take all reasonable steps to prevent the third party from doing so”.
The Bill also tackles sexual harassment suffered by employees in the course of their employment, by placing a new duty on employers to take all reasonable steps to prevent such harassment.
While the Bill is still going through parliament, employers should be gearing up in readiness, and ensuring the right processes are in place. The benchmark is likely to be high to encourage employers to be proactive in tackling discrimination in the workplace. While the term “all reasonable steps” is not defined by statute, we know from existing case law what is expected of an employer. Any tribunal will be looking for robust policies and evidence of steps taken to actively prevent harassment.
It all adds up to a tough new round of legislation for employers. The harassment by third parties can relate to someone over whom the employer has no direct control, with liability set to apply whether or not the employer is aware of the actions of the third party. The penalty will be higher where the employer is found to have breached their duty for any sexual harassment claim, as an uplift of up to 25% of the compensation award is currently proposed to be added on.