Worker Protection Bill Update: Harassment by Third Parties

In a significant development that has captured the attention of workplaces and legal representatives alike, the longstanding issue of employer liability for harassment of employees by third parties has witnessed a notable shift. The culmination of negotiations between government representatives and conservative peers has brought about a compromise that could reshape the workplace and legal landscape.

This compromise, while shedding light on some important legal considerations, also gives rise to some concerns about the balance between employee protection and corporate accountability.

Employer liability for workplace harassment

Employer liability for workplace harassment has, for some time, been a contentious topic.  The debate as to how to strike the correct balance between safeguarding employees and safeguarding the interests of the business has been of major consideration, to date.  

Until recently, employers were expected to create a safe and conducive work environment, which extended to preventing harassment from not only fellow employees but also third parties alike.  This list includes clients, customers or vendors.  

This approach held employers accountable for creating an environment free from any form of harassment, regardless of the source.

However, the recent compromise reached between the government and conservative peers marks a significant departure from this precedent.  

Under the new arrangement, an employer’s liability for harassment by third parties is set to be redefined.  The first major change is that employers will no longer be liable for the harassment of their employees by third parties. 

The second major change is that an employer will now only have to take “reasonable steps” to prevent sexual harassment rather than “all reasonable steps”.

Degree of control

This compromise emphasises the importance of assessing the degree of control an employer has over the third-party responsible for harassment. This new set of rules looks to differentiate between situations where the employer could have reasonably prevented the harassment and those where external factors were beyond their scope of influence.

Mitigating measures

The agreement also highlights the significance of the measures taken by the employer to address harassment promptly and effectively. Employers will be expected to demonstrate a genuine commitment to preventing harassment and ensuring a safe environment, which could mitigate potential liability.

Clearly identifiable and accessible reporting procedures

The compromise further highlights the necessity of clear and accessible reporting procedures for employees to raise concerns about harassment. Employers will be required to implement transparent policies which empower employees to report incidents, without the fear of retaliation. Cultural workplace standards must therefore be driven throughout the business in a top-down, bottom-up manner if change is to be successfully implemented.

The implications of the new bill

The implications of the new bill are multi-faceted and warrant careful consideration:

• Employee Protection – one school of thought is that the new bill will reduce the protection currently afforded to employees as a result of the diminished responsibility on employers to provide adequate protection or accountability. Concerns have been raised that workplace environments will become, once again, more challenging and will increase the risk of harassment
• Business considerations – From a business perspective, the new bill has recognised that employers do not always have full control over third parties. The bill aims to strike a balance between employee well-being and practical business considerations
• The legal standpoint – this change will set a precedent as to how cases are considered in employment tribunals going forward. The compromise may also influence how other workplace-related issues are negotiated and resolved in the future