Introduction
Background
Why are changes needed?
Does the Equality Act not already protect women (and others) against harassment in the workplace?
What changes have been proposed?
What is next, and what can employers do to prepare?


Introduction

The Worker Protection (Amendment of Equality Act 2010) Bill proposes new obligations on employers to prevent harassment. On International Women's Day, this article looks at:

  • why changes to current protections may be needed;
  • the progress of the bill;
  • what it may mean for employers; and
  • how the proposals might be used as a springboard by employers to "embrace equity".

Background

Despite its innocuous name, the Worker Protection (Amendment of Equality Act 2010) Bill contains some of the most significant changes to workplace discrimination law in Great Britain since the 2010 Equality Act. Following campaigning by the Fawcett Society and other women's groups, the UK government committed in July 2021 to legislate to impose a proactive duty on employers to prevent sexual harassment. The government proposes to fulfil that promise by backing this private member's bill, introduced by Liberal Democrat Member of Parliament Wera Hobhouse. The bill also provides for an uplift to compensation if the employer has failed to take reasonable steps to prevent sexual harassment and reintroduces protection against third-party harassment.

Why are changes needed?

The #MeToo movement was an important reminder, if it were needed, that harassment in the workplace remains a very real problem. Survey data consistently highlights that instances of sexual harassment of women in the workplace are astonishingly common. In a poll by the TUC, for example, 52% of women said they had experienced harassment at work.

The statistics are even more stark when looked at through an intersectional lens: women with other "protected characteristics" are even more likely to be sexually harassed. For instance, 68% of disabled female respondents to a 2021 poll had been sexually harassed at work.

Instances of all forms of harassment in the workplace also appear to go underreported. For example, polling of LGBT+ employees showed that 68% of those surveyed had been sexually harassed at work, yet two-thirds did not report it to their employer.

Finally, there is also strong survey evidence which suggests that harassment, abuse or violence perpetrated by third parties is common, with 36% of those in the 18-34 age bracket reporting that they have experienced this.

Those facts and figures make for grim reading and are a stark reminder that the workplace remains an unsafe place for many women and other groups supposedly protected under existing anti-discrimination law (primarily the Equality Act). In part, they are a reminder that the law cannot cure all ills: the Equality Act provides reasonably comprehensive protection against discrimination, including harassment, but there are gaps in the protection provided at present.

Does the Equality Act not already protect women (and others) against harassment in the workplace?

There is currently no clear protection for those harassed by third parties, such as customers, and no proactive duty on employers to try to prevent harassment.

When the Equality Act came into force in 2010, it did contain protections against harassment by third parties. But those protections were seldom used in practice: for an employer to be liable, an employee needed to show that the employer was aware of two or more previous instances of third-party harassment, and that it had failed to take action to prevent it. This was referred to as the "three-strikes rule".

In 2013, as part of the coalition government's "bonfire of regulation", the rule was removed, rolling back specific protections against harassment of employees by customers, suppliers and others.

What changes have been proposed?

Initial proposal
Broadly, the bill intends to:

  • reintroduce protection against harassment of employees by third parties. Initially the bill sought to do this by making employers liable for compensation to employees in connection with any such third-party harassment (including where that happened for the first time) where the employer had not taken reasonably practicable steps to prevent it. This goes much further than the previous three-strikes rule and in that way was seen as a boost to protections for vulnerable groups, while continuing to allow employers to resist claims where they had taken preventative steps;
  • introduce a proactive duty to take all reasonable steps to prevent sexual harassment of its employees in the course of their work; and
  • strengthen that proactive duty by providing for enforcement via the Equality and Human Rights Commission and an uplift to compensation for sexual harassment of up to 25% where an employer has failed to take those reasonable steps.

For further details, see "Government backs new laws on carers, sexual harassment, flexible working, redundancy protection and more: Employment Bill by the back door?".

Amendment: unintended consequences?
The government has, however, recently introduced an amendment to the proposed bill. The amendment is supposed to tackle concerns around the potential impact of the new anti-harassment protections on free speech. It sets out that employers will not be liable for acts that normally amount to harassment where:

  • the conduct in question is:
    • a conversation in which an individual is not a participant; or
    • speech that is not aimed at an individual;
  • the conversation or speech involves an expression of an opinion on a political, moral, religious or social matter; and
  • the opinion is not grossly offensive and there is no intent to violate dignity.

This carve-out from liability would not apply to sexual harassment but would otherwise operate as a bolt-on to the existing rules on harassment. Those provide that someone harasses someone else if they engage in unwanted conduct related to a protected characteristic that has the purpose or effect of violating dignity or creating an intimidating, hostile, humiliating or otherwise offensive environment.

Examples given by the government where the amendment or bolt-on would kick in include "overheard conversations or speeches not made directly to the claimant".

There are some obvious issues with the government's amendment, including most significantly that it would change the well-established existing test for harassment by colleagues, not just the test for harassment by third parties. This seems likely to introduce confusion. It would apply a higher threshold to a standard that has been in place for a decade, and it would also usher in two-tier protection against harassment:

  • one (lower) threshold for conduct of a sexual nature; and
  • another (higher) threshold for "other" harassing behaviour relating to protected characteristics more generally (including sex, race and sexual orientation).

As an example of how this might play out in practice, if an employee (A) stridently expressed the opinion that same sex marriage was "fake marriage" directly to a gay, married colleague (B), the current rules would apply and B would potentially have been unlawfully harassed. However, if they were in a common area where the comment was being made to others and B overheard it, they would only be protected if the opinion was deemed "indecent or grossly offensive" and those telling it had specific purposes or intentions. At the very least, it will take some time for employment tribunals, employers and employees to work out what type of comment or speech reaches that standard. Early decisions are likely to be contentious.

In addition, where the stated aim of the bill is to help root out discriminatory and harassing behaviours, this amendment runs contrary to that.

While there may be merit in applying some further limits to when liability for acts of third parties falls on employers, it seems clear that this could be achieved in a more targeted and specific way that is less likely to erode existing protection from harassment in the workplace and lead to uncertainty for employers and employees.

What is next, and what can employers do to prepare?

Will the bill pass as it is?
The bill is very likely to pass and become law, although as yet there is no proposed date. Even though the Fawcett Society in partnership with many other women's charities have voiced their objections to the controversial amendment, it is likely to remain, and become part of the law.

That means that employers should take action sooner rather than later.

What are the implications for employers and what can they do now?
All employers should take action to comply with the new positive obligation to prevent sexual harassment, and those with customer or third party-facing employees ought to do the same in response to the reintroduction of liability for harassment by third parties. Beyond simply trying to avail themselves of the defence that they took reasonable steps to prevent harassment, many organisations will want to use the discussion these changes will prompt as an opportunity to support their female workforce, and others who are particularly vulnerable.

Practical steps could include:

  • creating or updating central reporting registers for complaints about all forms of harassment. This will allow ongoing monitoring to spot themes or particularly risky practices and take action to address these. Of course, the data protection implications of creating and maintaining this register will need to be worked through – for instance, employers will need to identify a lawful basis and ensure any register can only be accessed on a "need-to-know" basis and is appropriately secured;
  • carrying out assessments of various types of roles and the way in which they interact with third parties. Understanding the circumstances of those interactions will be key to tailoring appropriate steps to reduce any risks. For instance, steps to protect those interacting with third parties via chat functions and phone lines will be different to those who meet third parties in their homes or places of work;
  • proactively identifying the risk of harassment in each set of roles and circumstances and thinking through specific measures to protect employees in each. This might sensibly involve consulting with representatives of relevant employees;
  • taking employee-facing steps such as:
    • updating and recirculating anti-harassment and speak-up policies;
    • carrying out tailored and situational training to help staff members avoid the threat of harassment; and
    • giving those who witness harassment (bystanders) the means to safely intervene or support victims.

It will be important to tread carefully though: poorly thought-out training and communications aimed at helping staff avoid harassment could come across as victim-blaming, and could undermine broader diversity, equity and inclusion initiatives; and

  • considering third-party facing steps such as installing visible signs in areas where customers interact with staff members, explaining that threats, violence and harassment will not be tolerated and providing a means for bystanders to report instances of staff harassment. Some larger public-facing businesses may even want to consider broader information and education campaigns through advertising or notifications on customer-facing platforms (including websites or apps).

As ever, the most effective responses will be those that are tailored to specific sectors and circumstances.

For further information on this topic please contact David Lorimer or Bethan Carney at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.