Businesses will face harassment risks beyond their own workplaces, including at client meetings, events, and in interactions with suppliers and service providers, as new employment laws take effect at the end of this month.
Currently, employers face direct liability only for harassment committed by their own staff. But on 30 October the UK government will reintroduce liability for third-party harassment under the Employment Rights Act.
Under the new law, businesses may be held liable for harassment their staff suffered at the hands of third parties. The scope of these offences can include sexist remarks made by a host at an awards dinner that a third party arranged, offensive remarks regarding religion said to an employee by a potential client, or a supplier making discriminatory jokes on a factory visit.
Andrew Moore, partner at Addleshaw Goddard, told City AM, “The reintroduction of employer liability for third-party harassment means businesses need to think carefully about how they protect their staff, including when they interact with clients, customers and other third parties.”
Dubbed the “banter ban”, at the time the Act was debated in the House of Lords last year, there was pushback from this coming into force. Lord Toby Young, general secretary of the Free Speech Union, raised concerns that the wording would lead employers to interpret it as having to protect their employees from overhearing jokes, remarks or expostulations they may find offensive because of their protected characteristics.
The new law, which comes a month before Christmas party season, will hold businesses to a high standard, requiring employers to take all reasonable steps to prevent such harassment.
“Harassment can happen in a range of settings, from industry events to client meetings, and employers need to be prepared,” Moore said.
Businesses need to be prepared
Lawyers are advising employers to conduct risk assessments, establish effective communication with third parties, have clear policies in place, and handle complaints promptly.
The lawyers are also advising clients not only to train staff on their rights and obligations and be clear about what is not acceptable, but also to put provisions in place requiring third parties to use accredited and reputable employment businesses when hiring temporary staff.
David Palmer, partner, Addleshaw Goddard, said: “Assessing whether ‘all reasonable steps’ were taken to prevent harassment – particularly where further preventative measures are introduced following an incident – may lead to questions about whether those measures could have been taken sooner. If so, the employer might find it has failed in its duty in the past.”