The Retailer Winter Edition 2023

THE RE TA I L ER

1 8

WORKER PROTECTION BILL AND THIRD PARTY HARASSMENT

Christina Tolvas-Vincent Partner Womble Bond Dickinson (UK) LLP

Dan Fawcett Legal Director Womble Bond Dickinson (UK) LLP

W hat the proposed changes mean for retailers and their employees

What practical steps can retailers take to prepare? As staff welfare and D&I are significant priori ties for retailers, these potential legal changes present an opportunity to reflect on current policies and procedures and consider whether there is something more that could be done to protect employees from harassment. Even if the new law is delayed or abandoned, changes made in readiness for it may yield positive benefits for employees. So, what can retailers do to ensure that they are taking all reasonable steps to prevent sexual harassment or third party harassment? Sexual harassment may be the easier of the two to tackle. Given #MeToo and the ever increasing focus on D&I many retailers may already be ahead of the game on taking steps to prevent it. However, it is well worth retailers reviewing their approach to ensure that: • Equality and/or Bullying and Harassment policies explicitly address sexual harassment; • Diversity training expressly deals with sexual harassment; • Managers receive training to a higher level so they are equipped to call out discriminatory behaviour; and • There is evidence that decisive action is taken when harassment complaints are upheld.

Howwill the new rights work? The duty to take all reasonable steps to prevent sexual harassment will not create a new right for employees to bring Employment Tribunal claims. However, it increases the potential finan cial penalty if a successful sexual harassment claim is brought against an employer under the existing harassment provisions. In that situation, an Employment Tribunal would be required to consider the employer’s compliance with the duty and, if there has been non-compliance, it could uplift an employee’s compensation by up to 25%. The reintroduction of third party harassment does, however, create a new right for employees to bring claims. This is the area where we see the greatest risk for retailers. The old third party harassment provisions essentially operated a “three strikes” rule. An employer would only be liable for harassment of an employee by a third party in circumstances where there had already been two previous incidents of such harassment. However, under the proposed new law an employer will be liable where: • A third party harasses an employee in the course of that employee’s employ ment; and • The employer has failed to take all rea sonable steps to prevent the third party from doing so. We have previously dealt with cases in which retail staff have been subjected to racial abuse by customers. Under the old lawa retailerwould not be liable for a one-off incident. However, under the proposed new law they would be. Given the substantial numbers of customers and other third parties retail staff will interact with on a daily basis this creates significant risk for retailers.

Howcan retailers prepare? The Government is supporting a private mem bers bill known as the Worker Protection (Amendment of EqualityAct) Bill 2022, which is designed to improve the protection from harassment under the Equality Act 2010. The bill is currently going through the par liamentary process and we do not yet know when (or if) it will come into force. However, it could have significant impacts for retailers and it would be advisable for retailers to start planning for how they will comply with the new law. Additionally, any new steps retailers take at this stage will no doubt help with their Diversity and Inclusion (D&I) agenda and help deliver a more positive work environment. What does the new law do? The new law is designed to remedy deficien cies in employees’ current protections from harassment. It would: • Introduce a new duty to take all reason able steps to prevent sexual harassment; and • Introduce liability for harassment of employees by third parties. In simple terms, harassment in this context means unwanted words or behaviour that are related to a protected characteristic (such as race or sexual orientation) and which have the purpose or effect of causing offence or violating an employee’s dignity. The concept of protection from third party harassment is not new. It was first introduced through the Equality Act 2010. However, the protections introduced in 2010 were limited in effect and claims were rare. Theywere then repealed in 2013. In contrast, the proposed new provisions will be much easier for employees to rely on and the risk of claims is much greater.

‘‘

As staff welfare and D&I are significant priori ties for retailers, these potential legal changes present an opportunity to reflect on current poli cies and procedures.”