New Duty to Prevent Sexual Harassment in the Workplace: What Steps Should Employers Take to Protect their Organisations?

Part two: third party harassment

In October last year we wrote an article informing employers of the steps they may want to take to get ready for the new employer duty to prevent sexual harassment in the workplace, which was due to come into effect on 26 October (the Duty): New Employer Duty to Prevent Sexual Harassment at Work: Effective 26 October 2024

In article one of this series, which can be located here: New Duty to Prevent Sexual Harassment in the Workplace: A Guide for UK Employers - Wrigleys Solicitors LLP we explained in detail the legal definition of sexual harassment.  In this article, we will consider how the Duty applies to prevent sexual harassment of staff by third parties.

If employers have not already taken steps to comply with the Duty, they should do so as soon as possible.

Broad reach of the Duty

The scope of the Duty extends beyond an employer’s own workers and employees.  The Employment and Human Rights Commission (EHRC) has specifically indicated that in considering compliance with the Duty, it will also investigate sexual harassment of an employer’s staff by third parties. Indeed, its guidance which can be accessed here: Sexual harassment and harassment at work: technical guidance | EHRC, repeatedly refers to preventing sexual harassment by third parties.

A ‘third party’ in this context is broadly defined as a person other than the employer, or an employee of the employer.  This could include an employer’s clients, customers or service users for example, but could also include other inadvertent interactions which staff have with third parties during their employment, such as delivery or postal workers. 

What steps should employers take?

The law does not list specific steps an employer must take to comply with the Duty.  What will be appropriate will vary from one employer to another and depend upon the employer's size and resources, the sector in which it operates and its working environment. There are also no minimum standards an employer must meet.

We have set out below some suggested actions specific to third party sexual harassment for employers to consider. These suggestions should not be viewed as an exhaustive list, and if employers require further assistance we would encourage them to seek legal advice specific to their organisation.

·         Anti-harassment policy

To address third party sexual harassment, an employer’s anti-harassment policy should:

- Specifically include sexual harassment by third parties in the definitions of harassment.

- Ensure that any examples and/or case studies of sexual harassment include interactions between staff and third parties, as well as those between colleagues.

- Explain that while an individual cannot bring a claim for third party sexual harassment alone, the employer has a duty to take reasonable steps to prevent it and may face legal liability where it fails to do so.   

Detail what steps will be taken to prevent third party sexual harassment, such as warning notices (see below).

- Provide a clear procedure for reporting sexual harassment by third parties.

- Encourage staff to report incidents of third party sexual harassment and state that it will not be tolerated.

- Set out what steps will be taken to resolve complaints of third party sexual harassment, as appropriate.

·         Risk assessments

Employers should either carry out a risk assessment, or where appropriate, amend their existing risk management frameworks to identify:

- the risks of third party sexual harassment occurring in their specific workplaces and/or during employment; and

- what control or other measures can be taken to avoid and mitigate these risks as appropriate.

Identifying the risks

A risk assessment should consider the employer’s working practices, including policies and procedures and any particular risks that apply to their specific working environment(s).

Employers need to ascertain the types of third parties their workers may come into contact with during their employment, and the frequency and nature of any such contact. 

Some employees will have more third party interactions than others, for example, those working in the Education, Retail, Hospitality, Healthcare and Care sectors.

Risk factors identified by the EHRC in its guidance which we consider may be particularly relevant to third party sexual harassment include:

• Power imbalances.  For example, where the decision-maker of an organisation’s key stakeholder is interacting with one of its junior employees. 

• Lone working, or working alone with a third party or parties.

• Staff that are “customer facing”.

• Workers being placed on secondment.

• Travel to different work locations.

• Attendance at events outside of the usual working environment, for example, training, conferences or work related social events.

In assessing risks, employers should look at any data available to them, for example from 1-to-1s with workers, anonymous staff surveys, exit interviews or previously reported incidents of harassment by third parties. 

Employers should also review and update their risk assessments if they identify any new or additional risks relating to third party harassment. 

How can employers mitigate the risk(s)?

1. Action plan

Employers should produce an action plan that sets out what preventative steps they will take to address any identified risks and how that will be monitored.

Employers should consider publishing their action plan to workers and the public, for example on their website.

2. Designated lead

Employers may want to appoint one of their senior leadership team as a designated lead, to take responsibility for compliance with the Duty and implementation of their action plan. 

This may be particularly useful in work environments that will face more challenges than others when tackling this issue, particularly where the third parties in question may be vulnerable, or where addressing the topic of sexual harassment with them may prove particularly sensitive. For example, in Education or Care settings, great care will be needed when communicating on this issue and consideration will be needed as to whether it is either necessary or indeed appropriate to communicate with family members or guardians about the topic. 

3. Warning notice(s)

Employers should consider signposting their commitment to preventing third party sexual harassment for example, through warning notices or signs.

The positioning of any signage will need to be carefully considered to ensure that it reaches the intended recipients at the point where interactions with their staff take place.

Any such notices do not have to be placed solely on physical premises.  They could be displayed on an employer’s website, or on information supplied to customers such as online booking confirmations. 

4.  Contractual arrangements

Employers should include a term in their contracts with third parties, such as customers, service users, contractors and suppliers, notifying them of the employer's policy on third party sexual harassment and requiring them to adhere to it.

5. Training / staff communication

All staff will need to have access to their employer’s anti-harassment policies and procedures, whether that be physical copies, online access or both.

Employees should also be trained to identify and respond to third party sexual harassment. Training should be tailored to the audience, for example in terms of seniority and job roles, in order to maximise impact. Specific bystander training could prove useful in providing workers with the skills they need to intervene and challenge third party sexual harassment at work.

In sectors where third party sexual harassment is more likely, the EHRC states that managers should receive guidance on how to address incidents when they occur.  It may therefore be prudent for employers in these sectors to draft separate guidance and bespoke training for their managers.

Enforcement

The Duty is enforced by the EHRC, which has the power to both investigate and take enforcement action against employers.  The EHRC can take action in any case, not just where the Employment Tribunal makes adverse findings.

Enforcement action includes:

Ø    The issue of an unlawful act notice, confirming employers have breached the Equality Act 2010 (EqA) and requiring them to prepare an action plan to remedy any continuing breach prevent future breaches.

Ø    A legally binding agreement with employers to prevent future unlawful acts.

Ø    Injunctions to restrain employers from committing an unlawful act. 

There is no free-standing complaint under the EqA that workers can bring against their employer in the Employment Tribunal for failure to prevent sexual harassment by third parties.  However, where a claim of sexual harassment against an employer is successful in the Tribunal, its failure to take reasonable steps to prevent sexual harassment by third parties could result in an uplift of any EqA compensation awarded by up to 25%. 

Employers should also be mindful that their failure to address third party harassment incidents when they occur could give rise to other legal complaints, such as constructive dismissal and indirect discrimination.

Further reform

The Labour Government published its Employment Rights Bill (ERB) on 10 October 2024.  The ERB will introduce further reform in the area of third party harassment, by:

Ø    amending the duty placed on employers to take reasonable steps to prevent sexual harassment to a duty to take all reasonable steps to prevent this occurring; and

Ø    extending the duty to prevent third party harassment to all protected characteristics, not just to sexual harassment. 

The legal landscape on third party harassment is developing at pace and employers will need to ensure that they have taken appropriate steps to ensure compliance.   

Please do not hesitate to contact the employment team at Wrigleys if you would like support with creating and implementing policies or reviewing your proposed action plans and risk assessments.

Readers can also sign up to our upcoming virtual Employment Brunch Briefing webinar on the new duty to prevent sexual harassment on 4 February 2025. Please book your place at: https://www.wrigleys.co.uk/events/detail/wrigleys-employment-brunch-briefing-february/