Employers are being urged to prepare for the possibility of new legislation which would put more liability onto them for staff suffering harassment from third parties, such as students or parents.
Legislation is currently in the Lords dealing with worker protection (amendment of Equality Act 2010) bill, which plans to allow employees to bring harassment claims to their employer after a single incident of third-party harassment.
Employers will be expected to demonstrate that they have taken “all reasonable steps” to prevent the issue.
The Equality Act 2010 currently offers no protection for workers who suffer harassment by a third party rather than another employee, a loophole that the bill aiming to close.
Previous legislation which is no longer in place effectively had a ‘three strikes’ rule where claims could only be made if it had happened on two previous occasions and employers hadn’t done enough to prevent the problem.
The new legislation, if passed, would mean all employers – including colleges and training providers – may need to introduce more stringent measures to protect staff from abuse by students or parents, as employees could sue their college or ITP for failing to prevent third party harassment.
The bill – a private member’s bill brought forward by Liberal Democrat MP for Bath, Wera Hobhouse – has enjoyed government support so far, although questions remain over whether it will progress because of a series of up to 40 amendments by Conservative peers which could run down the clock on Parliamentary debate time.
However, colleges are being urged to prepare regardless of the outcome, to ensure their reporting policies are robust and leaders are aware of the obligations.
Joanne Moseley, senior practice development lawyer at Irwin Mitchell, who has penned a blog explaining what the changes could mean and what employers should do to prepare, said that it is “particularly difficult in the context of colleges and schools”.
Moseley said businesses in service industries could just ban a customer harassing a member of staff, but colleges and schools had legal duties to students and pupils which meant they could not just exclude them in the very first instance.
“I think it is extremely important [colleges are aware of what their responsibilities will be]. You want to retain the staff you have – if you don’t tackle this it is going to lead to probably stress, ill health or leaving the profession,” Moseley told FE Week.
“If it does come into force it is going to change their legal responsibilities, and therefore put a much greater obligation to try and pre-empt these things. If you have got somebody who has been subjected, for example, to a catalogue of racist abuse you are looking at [paying out in compensation] a decent sum of money for that.”
Moseley said injury to feeling payouts at employment tribunals start at £1,100 for the lowest band – one-off or isolated incidents which are not considered serious – rising to £56,200 for the most serious cases where there has been a campaign of harassment.
On top of that could be payouts for things such as loss of earnings or pension losses if that member of staff cannot continue work, and could add up to hundreds of thousands of pounds in remediation.
The bill follows work originally started under a previous employment bill, which ceased over a year ago.
As well as liability for harassment of employees by third parties, the new bill also covers employer duties to prevent sexual harassment of employees.
A government survey in 2020 reported that 29 per cent of employees had experienced some form of sexual harassment in the workplace in the 12 months prior.
A spokesperson for Hobhouse said the bill was a recognition that the issues were widespread, and said that the government was working with Conservative peers who had raised concerns to find a way through.
Hobhouse told the Commons in February: “This bill cannot be allowed to fall. It will make a huge difference to the lives of many people in the workplace and will help to provide a cultural shift in attitudes towards appropriate behaviours at work.”
Among measures colleges are being encouraged to consider are reviewing policies and reporting mechanisms, being aware of the prevalence of existing problems on their campuses, reviewing teaching of harassment to students, monitoring complaints, introducing any necessary training to staff, and evaluating policies regularly.
A spokesperson from the Association of Colleges said: “It is important colleges keep their policies up to date within the ever-changing regulatory landscape and we support our members to do this when new rules are on the horizon.”