Changes to the Worker Protection (Amendment of Equality Act 2010) Bill have been made by the House of Commons which will remove the proposed provisions relating to third-party harassment and water down the new duty to prevent sexual harassment. This has now been approved by MPs and will become law.
This follows a debate between the Government and Tory peers in July 2023, which saw the Bill republished with the clause that dealt with third-party harassment deleted in its entirety. A further change to the Bill will see the requirements reduced in relation to employers having to take “reasonable steps” rather than “all reasonable steps” to prevent sexual harassment in the workplace.
The removal and changes to these provisions stem from Conservative peers’ concerns related to the curtailment of free speech and the burden and costs these clauses would place on employers.
In the House of Commons, MP Wera Hobhouse, said:
“I cannot stand here and say that I am completely happy with the amendments. But if I did not accept them the Bill would not progress into law, and that would be a lot worse.
The longer it takes for legislation preventing sexual harassment to become law, the more workers – especially women – will be left at risk of workplace sexual harassment – that would simply not be acceptable.”
The legislation followed an inquiry in 2018 by the Women and Equalities Committee into the extent of sexual harassment at work, which recommended existing laws were “beefed up” to force employers to take a more proactive approach to protect workers and employees from harassment at work.
The Worker Protection Bill – What does it propose?
The updated Bill renders employers liable for harassment of employees and workers and creates a new positive duty to take reasonable steps to prevent sexual harassment.
Harassment on the grounds of any of the following protected characteristics would be covered:
- Age
- Disability
- Gender re-assignment
- Race
- Religion or belief
- Gender and sexual orientation in addition to sexual harassment
Note that marriage, civil partnership, and pregnancy and maternity are not included in the current protection from harassment and so would not be caught under the new rules either.
Employers will be liable even for one-off incidents of harassment, unless they can show that they took “reasonable steps”, not “all reasonable steps”, to prevent the harassment from occurring.
Positive duty to take “reasonable steps” to prevent sexual harassment
At this point in time, it is what effect the removal of the word “all” will have on this provision. This amendment may be regarded as a setback for those who had hoped to see stronger protections against harassment in the workplace. Despite this, it is envisaged that employers who do not take adequate steps to prevent harassment could face enforcement action by the Equality and Human Rights Commission (EHRC). Further, Employment Tribunals would have the power to increase compensation in successful harassment claims by up to 25% where the employer has failed to comply with this duty.
Next steps
The EHRC has previously indicated that it would produce a Statutory Code of Practice for employers on harassment which will provide guidance and examples for employers.
Considerations for employers in the interim
Now that the Bill has received Royal Assent, we advise that employers review and update their approach to harassment issues:
- Zero tolerance – Is there a zero tolerance on harassment engrained in your culture? If not, what steps can you take to ensure this? Review your policy framework and consider training requirements.
- Third-party relationships – Whilst the clause relating to this has been removed from the revised Bill, it is advisable that where you enter contracts with third parties, such as suppliers and customers, you should include provisions concerning harassment to protect employees. Current laws in place specify that an employer still risks being liable for discrimination or harassment if it does not deal with complaints concerning harassment by third parties which puts employees at risk.
- Training employees – Having a clear policy that all employees are aware of and set out exactly how to identify and report harassment in the workplace, as well as support them by taking appropriate steps to address this when it is reported.
- Taking prompt action – Creating a culture that will investigate and address the harassment as soon as it is reported/identified.
How Nelsons can help
Ruby Rai is a Senior Associate in our expert Employment Law team, advising on a wide range of employment matters, including TUPE, redundancies, and senior-level exit strategies, drafting policies, procedures, employment contracts and settlement agreements.
If you would like any advice concerning the subjects discussed in this article, please contact Ruby or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.
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