The Worker Protection (Amendment of Equality Act 2010) Bill, which had its third reading last week, will make employers potentially liable for harassment of their employees by third parties.
It will also require them to take all reasonable steps to prevent sexual harassment of their employees and enable tribunals to award an uplift in compensation in successful cases.
Although a private members’ bill, it is being supported by the government and as a result, has a better than average chance of being passed into law.
Ironically, however, a decade earlier, the Tory government repealed Section 40 of the Equality Act which made employers liable for harassment by third parties such as customers, clients and service users (weekly LELR 338). This was despite the fact that the move was overwhelmingly opposed in an earlier consultation. In other words, this bill replaces what the government took away in 2013 and what it proposed in its now long-abandoned Employment Bill.
The main difference between the two provisions is that, rather than liability being triggered after two previous incidents of harassment (as was the case with Section 40), this bill states that the provision is effective on the first occasion, as long as it can be shown that the employer failed to take all reasonable steps to prevent it.
Despite supporting the provision this time round, however, the government tabled an amendment to the bill at the last minute, despite concerns by both the Equality and Human Rights Commission and the National Alliance of Women’s Organisations.
Specifically, the amendment provides that employers should not be liable for workplace harassment (other than sexual harassment) in circumstances where it arises as a result of a conversation in which someone has expressed an opinion on a political, social, moral or religious matter.
In effect, this is to capture “overheard” conversations where someone has expressed a personal view. It, therefore, goes beyond the scope of the bill since it applies to all instances of (non-sexual) workplace harassment and is not restricted to harassment by third parties.
If enacted, the provisions of the bill will be a small step in the right direction but certainly more law reform is needed if the UK government is to comply with the International Labour Organisation’s Violence and Harassment Convention 2019, which the UK ratified in March 2022 (weekly LELR 749).
It provides the first international definition of violence and harassment in the world of work, including gender-based violence and harassment. Specifically, the convention calls for the adoption of a comprehensive strategy in order to implement measures to prevent and combat violence and harassment, including commuting to and from work and online violence and harassment. This is all the more important now since the ILO reports that organisational changes, especially where work has had to be reorganised, can be factors that increase risk.
To read the bill, click here.
To read the government amendment, click here.
To read the full convention document, click here.