In an industry dominated by interactions with a diverse array of suppliers, contractors and other third parties, the new employer duty to prevent sexual harassment in the workplace has significant implications for the food and drink manufacturing sector – and the heat on the issue is only set to intensify.
What is the new employer duty and how does it apply to third parties?
From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 requires employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment. In simple terms, this preventative duty requires employers to anticipate the risk of sexual harassment and take action to prevent it. Further, if sexual harassment has occurred, employers must act to prevent recurrence.
The Equality and Human Rights Commission (EHRC)’s technical guidance has made it clear: employers must prevent sexual harassment of their employees by third parties, including customers, suppliers, contractors and the public. This is significant as there is currently no standalone claim that employees can bring against their employer for third-party harassment.
Although the new duty does not create a new standalone employment tribunal claim, claims for breach of the duty will be considered by a tribunal where it has upheld an employee’s claim of harassment. In such cases, the tribunal can increase any compensation award by up to 25% where it finds there has also been a breach of the preventative duty.
The EHRC is watching closely and could take action. With powers to investigate, issue unlawful act notices, enforce action plans, and secure agreements and injunctions, non-compliance can lead to serious reputational damage and media scrutiny.
What are the particular risks for the food and drink manufacturing sector?
Importantly, there is no ‘one size fits all’ approach to assessing risks, and these will vary depending on individual circumstances. Employers should therefore start with a risk assessment specific to their business. Indeed, the EHRC goes so far as to say that, any employer not undertaking a risk assessment will likely not have complied with the duty. Particular sector-specific risks might include:
- Third parties - given its supply chain, the sector has an increased likelihood of third parties (e.g. suppliers/customers) entering its premises and, likewise, an increased potential for some of its own employees to enter third-party premises.
- Lone working and night working - operational hours within the sector can be 24/7, increasing the risk of a reduced managerial presence at certain points e.g. night working. There may also be a risk of lone working at these times with a third party.
- Any male-dominated workforces, for example potentially some warehouse/manufacturing environments in the sector.
- Any gendered power imbalances, for example any teams or business areas where junior staff are female and senior managers are male.
- An insecure or casual workforce – e.g. the use of zero hours contracts, agency workers or contractors.
- Any circumstances where workers are attending social events outside of the workplace (particularly if alcohol is being consumed).
Once risks are identified, employers should consider steps to reduce those risks and whether such steps are ‘reasonable’.
What steps might be reasonable to mitigate risks?
What is a reasonable step will be bespoke to the risks identified and a generic, untailored approach will not meet the proactive requirements of the duty. The EHRC’s technical guidance sets out a number of scenarios and examples of tailored strategies, depending on the size of the employer, nature of risks, the sector, nature of contact with any third parties, cost-benefit analysis and more.
The EHRC’s eight-step employer guide to preventing sexual harassment suggests, as a minimum, developing an anti-harassment policy, engaging staff, providing regular staff training, ensuring proper reporting mechanisms and regularly evaluating actions.
In the food and drink manufacturing sector, managing third-party risks is essential due to the high frequency of interactions. Employers must ensure their anti-harassment policies are well-communicated to third parties and set clear expectations for interactions with their staff.
One effective strategy is to draft robust third-party commercial terms. This not only demonstrates compliance with new regulations but also offers protection. For instance, when employers have the bargaining power, they should require third parties to maintain an up-to-date anti-harassment policy that aligns with their own and ensure regular training for their staff.
Further, including a term that the third party will indemnify the employer against all claims, damages, losses, expenses and costs arising out of or in connection with any sexual harassment of the employer’s staff by the third party supplier’s staff could offer important financial protection in the event of employee claims, allowing the employer to pass on liability for any third-party incidents.
Proposed strengthening of harassment laws
Looking ahead, sexual harassment and third-party harassment looks set to become an even bigger focus for the sector. The recently published Employment Rights Bill proposes reintroducing third-party harassment as a standalone claim, applying to all protected characteristics.
In addition, the Bill proposes to require employers to take ‘all reasonable steps’ to prevent sexual harassment – extending the preventative duty further. This is a high bar. The Bill is still progressing through parliament however and may be amended further, and employers will want to follow this closely.
In anticipation of potential future change, employers may consider updating third-party commercial agreements to provide protection against harassment in relation to all relevant protected characteristics. Regardless of the current legal position, many employers may want to seek this level of assurance from third parties - as a gold standard and step to becoming an equal opportunities employer of choice.
Heading into 2025, third-party harassment will remain a high-priority issue for the food and drink manufacturing sector, with costly consequences for employers who fail to tackle it head-on.
Unsure where to begin? Start by ensuring your commercial terms are up to date!
