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There are some upcoming changes to the law around harassment, along with further reform which has been promised by the Labour Party, that will place additional duties and responsibilities on employers. These changes will have a particular impact on the education sector.

The Equality Act protects people with certain protected characteristics from discrimination. Claims for discrimination and harassment can be brought against employers and the employees who perpetrated the acts, with employers potentially being liable for the actions of their employees, but not, currently, for the actions of third parties.

Duty to protect employees from sexual harassment

A new law due to come into force on 26 October 2024 places a positive duty on employers to take reasonable steps to protect employees from sexual harassment. The new law also allows employment tribunals to uplift compensation for sexual harassment by up to 25% where employers have failed to take reasonable steps to prevent sexual harassment.

Reasonable steps may include the following:

• Providing mandatory training for all employees;
• Conducting risk assessments;
• Implementing procedures to encourage the reporting of sexual harassment;
• Having a policy specifically dealing with sexual harassment;
• Having designated staff to provide support and advice to those who are subjected to or witness sexual harassment.

As things stand, this positive duty is only limited to sexual harassment, but it is possible that a future Labour government would investigate whether this positive duty should be expanded to include other protected characteristics, particularly ethnicity and disability.

Third parties

Currently, employers are not liable for harassment carried out by third parties. This was not always the case. In 2010, the Labour government introduced liability for employers for harassment of third parties. Under those regulations the employer’s duty to prevent third party harassment arose where the employee had been harassed by a third party on at least two previous occasions, and the employer is aware of the harassment but fails to take ‘reasonably practical steps’ to prevent harassment by a third party from happening again. This was repealed by the Coalition government in 2013.

The law that is coming into force in October originally included a clause that would have seen the reintroduction of liability of employers for harassment of employees by third parties. The proposed changes would have made it even easier for employees to bring claims, removing the requirement for there to have been at least two previous occasions of harassment by a third party. However, the bill was amended by the government to remove this clause; a move that was criticised by the Labour Party.

However, regardless of the amendment to the bill, there is a possibility that the new law may still see a return of liability for sexual harassment by third parties. The law states that an employer must take reasonable steps to prevent sexual harassment ‘in the course of employment’ which courts could interpret to include harassment by third parties.

The Labour Party, in its recently published ‘Plan to Make Work Pay’, has pledged to reintroduce employers’ liability for harassment perpetrated by third parties. What form this third-party liability will take is currently unclear, but it seems likely that, at the very least, it will see a return to the three-strikes approach introduced in 2010.

Impact on schools

As things stand, schools are not responsible for harassment perpetrated by their students or parents against their employees. This was confirmed in a recent case where a teacher was harassed by her students because of her ethnicity and the school failed to take appropriate steps to address the problem.

However, if the law does change, then schools are particularly vulnerable given the level of control and influence that they have over their students and the disciplinary measures they can take. Schools should therefore consider what reasonably practical steps they may want to implement in anticipation of legislation by a future Labour government. These might include:

• Having a policy on harassment and making this available to students and parents;
• Notifying students and parents that harassment of employees is unlawful and will not be tolerated;
• Conducting seminars on bullying and harassment for students;
• Including a term in your Terms and Conditions notifying parents of your policy on harassment and requiring that both the parents and the students adhere to it;
• Encouraging employees to report any acts of harassment by students or parents;
• Taking appropriate action on every complaint of harassment.

If you have any employment-related issues or would like advice about reviewing and updating your terms and conditions, our specialist teams would be happy to assist you further. Please email info@leathesprior.co.uk or call us on 01603 281153.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.