Violence and harassment in the workplace: draft Bill published – what does this mean for businesses?

Proposed amendments to the Health and Safety at Work etc. Act 1974

Further to our recent article ‘Violence and harassment in the workplace: Bill seeks proactive measures for protection of employees’, the draft Bill has now been published. This outlines the proposed amendments to the Health and Safety at Work etc. Act 1974 (HSWA).

The Bill proposes to amend the legislation setting out the employer’s duty towards employees under Section 2(1) of the HSWA by referencing specific factors to be included in the duty, namely:

The adoption of proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including—

1. gender-based violence;
2. sexual harassment;
3. psychological and emotional abuse;
4. physical and sexual abuse;
5. stalking and harassment, including online harassment; and
6. threats of violence.

The proposed amendments will also require employers to prepare (and periodically review) a risk assessment of potential violence and harassment in the workplace and implement policies to eliminate these as far as reasonably practicable. Employers will also be required to provide training to staff (to include temporary workers, interns, apprentices and volunteers as well as employees) on recognising and preventing violence and harassment with a focus on "gender-responsive approach", which under Section 2 (subsection 3)(3C) of the Bill means "taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures."

What does this mean for businesses?

It may seem obvious that existing health and safety law, which imposes a duty on employers to protect an employee’s health and safety (Section 2(1) of the HSWA), captures foreseeable violence and harassment. However, it may be a welcome development for some employees, that there would be explicit reference in the HSWA to a “gender-responsive approach.” The Bill imposes obligations on employers to recognise and implement preventative measures which take into account the various needs, interests and experiences of persons with different gender identities, including women and girls. The overlap with equalities legislation will have to be considered by businesses when implementing policies and procedures. 

Duties on Health and Safety Executive (HSE)

To assist businesses with compliance, the draft Bill also makes provision for the duty of the HSE to develop, publish, and when appropriate revise, a health and safety framework on violence and harassment in the workplace (the Section 11ZA additon in the Bill). This will give companies guidance on creating a safe and inclusive working environment, as well as mechanisms to monitor and enforce compliance. This will be particularly useful for the retail sector, where according to the British Retail Consortium’s 2024 Crime Survey, there has been a “massive increase in violence and abuse” towards retail workers. The BRC Crime Survey 2024 report indicated a 50% increase between the years 2021/22 and 2022/23 in incidents.

Comment

The points that employers will be expected to include, and risk assess against, are wide ranging and will impose additional burdens on businesses. People have to be safe at work and it is right that these issues should be considered given abuses that have taken place in the workplace. The crux will be finding the right balance between reasonable steps from the employer and not expecting employers to take on the role of the police in what amounts to serious criminal offences. 

One significant change may be that if these points are included in legislation they are likely to be considered foreseeable risks moving forwards. An employer will not be able to say it was not aware of, or too remote a possibility, that action was required. 

The proposed wording appears to extend the duty to employees to those who would not typically be considered an employee, such as job applicants. If enacted we would expect to see amendments in the proposed staff the duty is intended to cover, or a similar proposal to amend the duty towards non-employees (per Section 3 of the HSWA).

The ability of regulators to enforce these proposed amendments is also a point that needs to be considered. This is not the typical line of enforcement we are used to seeing in health and safety. As matters currently stand HSE and local authorities do not appear to have the resources to enforce these requirements. Some form of agreement (similar to the Work-Related Deaths Protocol) would likely be required to delineate the enforcement roles of the police and health and safety regulators in such circumstances. 

Further questions arise around RIDDOR that do not appear to have been considered. Will an update be needed based upon the proposed amendments? Is psychological or emotional abuse that happens at work between staff to be considered work-related when not part of the role or condoned by the employer? Are threats? Can the regulators cope with what could be a significant increase in the number of reports?

We will continue to monitor developments.