Employment Update: Worker Protection (Amendment of Equality Act 2010) Bill

Thursday 6th April 2023

The Worker Protection (Amendment of Equality Act 2010) Bill is currently progressing through the House of Lords having successfully passed through the House of Commons.

The Bill would hold employers liable for the harassment of employees by third parties in certain situations and introduce a positive duty on employers to prevent sexual harassment.

What does the new Bill say?

Liability of employer for harassment of employee by third parties

Under this new Bill, employers may be held liable where a third party harasses an employee in the course of their employment and the employer failed to take all reasonable steps to prevent the third party from doing so. Employers are already liable for harassment by employees in the course of their employment but the Bill now extends this liability to third parties, which could be clients, visitors, members of the public, consultants, agents etc. For example, under the Bill, an employer may be liable for harassment of retail staff by customers or harassment of office staff by maintenance contractors.

However, it should be noted that this principle is not new. In the past, employers were held responsible for third party harassment if they failed to take reasonable precautions to stop the harassment and knew the employee had experienced harassment on at least two other occasions, regardless of whether the third party was the same person each time. These rules were repealed in October 2013.

Under the new Bill, an employer could be held accountable for a single or initial act of harassment as the ‘three strike rule’ is no longer included. Employers may find this difficult because they could be held accountable without having received any previous warning or indication that their employees might be subject to harassment from third parties. Employers will have a defence if they can demonstrate that they have taken all reasonable steps to prevent the third party harassing the employee.

What about free speech?

Following concerns surrounding the potential impact of the new anti-harassment rules on free speech, the Bill was amended by the House of Commons to ensure that an employer will not be treated as having failed to take all reasonable steps to prevent harassment solely because they did not seek to prevent customers and clients from expressing their opinion. This will only apply to harassment where the conduct involves a conversation in which the employee is not a participant or a speech which is not aimed specifically at the employee, the conversation or speech involved the expression of an opinion on a political, moral, religious or social matter, the opinion expressed is not indecent or grossly offensive and the expression of the opinion does not have the purpose of violating the employee’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. This amendment would be relevant to overheard conversations or speeches not made directly to the employee.

Employer duty to prevent sexual harassment of employees

The Bill would also introduce a proactive duty on employers to take all reasonable steps to prevent sexual harassment of its employees in the course of their employment. Should the tribunal find that an employer failed to prevent sexual harassment, it may order an uplift in compensation of up to 25% to be paid to the employee.

What does this mean for employers?

This is big news for employers!

If the Bill passes into law, you will need to regularly review the best practices for preventing harassment. We would advise that you create strategy papers to go along with any anti-harassment policy.

We would also suggest that you assess the different types of roles within your company and their interactions with third parties. This would proactively identify any risks of harassment and enable you to devise specific measures to protect employees in these situations.

An employer would not be liable for harassment of employees by third parties if you can show you had taken “all reasonable steps” to prevent the harassment. Unhelpfully, it is currently unclear what those reasonable steps would be as the Government Equalities Office is still developing a statutory code of practice on sexual harassment and harassment in the workplace. Accompanying guidance is planned to be published if the Bill is passed.

The Bill has not been passed into law yet so the current provisions may be subject to change in the coming weeks. Employers would have 12 months to prepare before the new law comes into force, but as drafted the new Bill is onerous on employers and businesses will need to ensure that necessary steps are taken to prevent harassment especially if your workforce comes into regular contact with the public or other third parties.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment team.