No joking matter for employers: sexual harassment by 3rd parties
Those of us who are old enough will remember a time when the world of stand-up comedy sounded and looked very different. Where the acts of certain comedians in the 1970s and 1980s made them household names in the world of light entertainment, today their performances would bring them a very different type of attention in the modern day phenomena of cancel culture. What historically were found to be funny “jokes”, with the benefit of hindsight are now quite rightly found to be nothing more than sexist, racist and homophobic abuse.
That is why it is surprising that one of the main protagonists of this unacceptable face of the comedy scene, Bernard Manning, was actually central to (albeit unwittingly (in more ways than one)) the development of the law in providing protection to workers and employees against discrimination in the workplace.
The Worker Protection (Amendment of Equality Act 2010) Act 2023
This week a new piece of legislation was passed by the government. The Worker Protection (Amendment of Equality Act 2010) Act 2023 (“the Act”) introduces a new obligation on employers to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment.
Employers are currently vicariously liable for acts of discrimination and harassment carried out by their employees and officers against workers in the course of employment. As such, the significant change that the new legislation brings about is that employers may also become liable for the acts of 3rd parties, not employed or engaged by them, where those external persons engage in acts of sexual harassment against the employer’s staff.
Bernard Manning – equality champion?
So what does this have to do with Bernard Manning? The introduction of the Act is not the first occasion when the law has made an effort to make employers liable for discrimination and harassment by 3rd parties against their employees.
The first occasion this happened was in the case of Burton v DeVere Hotels Ltd  IRLR 596. Mr Manning had been giving an after-dinner speech at a private members dinner at a hotel. The Claimant in this case (and a colleague) was working at this event. She was a young, black female (as was her co-worker). While Ms Burton was performing her duties, Mr Manning began to direct remarks to her in the course of his speech which were both racist and sexist. Following this Ms Burton was subjected to further racist and sexist behaviour from the guests at the dinner.
Ms Burton subsequently brought a claim of race harassment against the hotel, seeking to hold it liable for the behaviour of Mr Manning and the other guests at the event who had engaged in improper behaviour. In what was a first, the Employment Appeal Tribunal took the view that Ms Burton’s claim ought to be upheld and De Vere Hotels should be held liable for the behaviours of these 3 rd parties.
Central to their decision was evidence given by the Hotel Manager to the effect that he was well aware of the subject matters of Mr Maning’s jokes; knew that this may contain sexist and racist material; but did not consider how that may impact upon Ms Burton (or her colleague).
The law has been in something of a state of flux since the Bernard Manning case about employers’ liability for 3 rd party harassment.
In a subsequent decision, the House of Lords found that the Burton case had been wrongly decided and the legislation in force at that time did not permit tribunals or courts to hold employers responsible for 3rd party harassment.
When the Equality Act was introduced in 2010 it included express provisions which stated that an employer would be liable for 3rd party harassment where unwanted conduct had taken place on at least two other occasions. The employer was aware of it but failed to take reasonably practicable steps to prevent it. However, this new provision did not last long and was removed from 1st October 2013.
The new law
The Act is therefore the latest attempt to try and attach liability to employers for 3 rd party harassment.
However, the new rules differ slightly from what has come before. Here is what employers should be aware of:
The provisions apply to “sexual harassment” only: no other types of discrimination or harassment will be covered (despite the Act initially trying to do this).
Section 26 of the Equality Act defines sexual harassment as covering:
- Where a person (A) engages in unwanted conduct of a sexual nature, and the
conduct has the purpose or effect of violating another person’s (B) dignity, or creating
an intimidating, hostile, degrading, humiliating or offensive environment for B; or
- A or another person engages in unwanted conduct of a sexual nature, the conduct
has the same purpose or effect, and because of B’s rejection of or submission to the
conduct, A treats B less favourably than A would treat B if B had not rejected or
submitted to the conduct.
For any claim to be successful, a claimant will need to show that any “sexual harassment” occurs “in the course of employment”. This requires there to be a sufficiently close connection to the employment relationship for the employer to have liability. That may include:
- Where acts occur in the workplace;
- Where acts occur at official work events;
- Where the 3 rd party’s relationship with the employee purely arises out of the fact of
Employer’s will have a defence to any claim brought under the new provision where they can show they have taken “reasonable steps” to prevent the harassment from occurring. Helpfully for employers, in its final stages a requirement that employers take “all” reasonable steps was removed. This amendment should ensure that employers have a greater likelihood of being able to rely on the statutory defence.
What is reasonable will vary depending on the particular situation and could include:
- Providing a clear reporting mechanism for employees who believe they have been subject to harassment;
- Taking steps to terminate the relationship with any 3 rd party who it appears is responsible for sexual harassment (e.g. refusing their custom; asking a supplier to provide a different individual to deliver goods/ provide services to the business);
- Ensuring staff (and in particular managers) are fully versed in what the new law expects of employers and are proactive in intervening in any situations where the potential for sexual harassment is identified;
- Being cautious about which 3 rd parties are invited, asked or contracted to interact with your business.
Employers can be found liable immediately upon an act of sexual harassment occurring: there is no repeat of the “3 strikes” approach initially adopted when the Equality Act was introduced.
The Act also gives employment tribunals the power to increase compensation by up to 25% where an employer is found to have breached the new duty to prevent sexual harassment.
The Act will come into force on 26 th October 2024, so employers will have a period to prepare for these new rules and to introduce measures which can guard against and minimise the risk to businesses.
What should employers do to prepare?
It is important for employers to take steps to prepare for the new law. The world of comedy has provided us with a recent example to highlight the potential for 3 rd party harassment to occur in the workplace in light of the recent allegations made regarding Russel Brand.
Every workplace is different, so what specific steps need to be taken to manage the risk of the new law will vary. However, for every employer this should involve:
- A review and update of your Equal Opportunities policy
- A risk assessment of particular areas where employees interact with 3 rd parties and steps that can be taken to reduce or minimise potential sexual harassment
- Training staff on both what types of behaviour is not acceptable in the workplace and how instances of inappropriate behaviour should be reported
- Developing a clear approach as to how reported instances of sexual harassment by 3 rd parties will be addressed to stop a repeat of the same or similar behaviour.
Our team have a great deal of experience in assisting clients with these matters and we are happy to help in drafting an internal process that will ensure your business is managing the potential risks that the new law creates. We are even known to throw in the odd joke or two as well, although we can pretty much guarantee you won’t hear anything from Bernard Manning’s back catalogue.
If you have any questions on this on any other area of Employment law, please get in touch
with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh and Glasgow, and across Scotland.