Policy
The Government has previously laid out some policy intentions in respect of strengthening protections for whistleblowers and in respect of third-party harassment and sexual harassment. It also proposed to bring into force certain provisions that are in the Equality Act 2010, but not (fully) in force. These are dealt with in turn below.
Whistleblowing and non-disclosure agreements (‘NDAs’)
The Government previously promised to strengthen protection for whistleblowers, “including by updating protection for women who report sexual harassment at work.”
Currently, there are already protections against victimisation at work for raising a complaint of sexual harassment under the Equality Act 2010.
The Employment Rights Bill amends the list of disclosures qualifying for protection under whistleblowing laws to include sexual harassment. Workers who make a disclosure of information about sexual harassment that has occurred, is occurring, or is likely to occur will now be explicitly covered by whistleblowing protections (such as protections from detriment or dismissal), if they have a reasonable belief that their disclosure is in the public interest.
The change also means that NDAs will not be able to prevent such protected disclosures from being made, something which has been a hot topic in the press for some time.
Third party harassment
In a significant change, the Employment Rights Bill (re)-introduces protection against third party harassment relating to all the protected characteristics covered by harassment (so not just sexual harassment). Employers will be liable if a third party harasses an ’employee’ (a broader definition under the Equality Act 2010 including employees, workers and apprentices) in the course of their employment and the employer failed to take all reasonable steps to prevent the third party from doing so.
On the current drafting, an employer could be liable for a single act of third party harassment – unlike the previous third party harassment provisions in the Equality Act 2010 that were repealed in 2013, which provided that employers were not liable for third party harassment unless there had been at least two other incidents of harassment by a third party.
Notably, provisions seeking to introduce third party harassment were previously dropped during the passing of the Worker Protection (Amendment of Equality Act 2010) 2023 (the ‘Worker Protection Act’) under the previous Conservative Government given some of the practical difficulties that this could have for employers.
Sexual harassment
The Worker Protection Act, which came into force on 26 October 2024, introduces a legal duty on employers to take reasonable steps to prevent sexual harassment of employees (under the broader Equality Act 2010 definition) in the course of their employment. The Employment Rights Bill will increase this new obligation so that employers must take ‘all reasonable steps’ to prevent sexual harassment.
What will entail ‘all reasonable steps’ awaits to be seen and the Employment Rights Bill includes new powers for regulations to be made to specify what steps are to be regarded as ‘reasonable’. If this is akin to the ‘all reasonable steps defence’ for employers to avoid vicarious liability, then this is a high hurdle, as an employer will not be considered to have taken all reasonable steps if there are any further steps that they could reasonably have taken.
Public sector socio-economic duty and dual discrimination
The Next Steps document is silent on whether the Government will consult on the bringing into force certain provisions in the Equality Act 2010 (that it previously said it would enact) and on any applicable timings. The provisions it has previously said it would bring into force include the:
- public sector socio-economic duty in section 1 of the Equality Act 2010 in England (it is currently in effect in Scotland and Wales and some councils in England have voluntarily adopted it); and
- protections against dual discrimination, i.e. where discrimination is because of a combination of protected characteristics, in section 14 of the Equality Act 2010 (which has never been brought into force since the Equality Act 2010 became law).
Timing and developments
Whistleblowing, third party harassment and sexual harassment
Included in the Employment Rights Bill. Further regulations are awaited to specify what steps are to be regarded as ‘reasonable’ in respect of the duty to prevent sexual harassment. It is unclear whether this is one of the targeted areas on which the Government plans to consult in 2025.
Implementation currently anticipated for no earlier than 2026, though firm details on timing have not yet been provided.
Public sector socio-economic duty and dual discrimination
Not in the Employment Rights Bill. As these are essentially lying dormant on existing statute books, these could be enacted quickly.
Await developments.
Sources
Plan to Make Work Pay, Employment Rights Bill, Next Steps to Make Work Pay.