A Private Members’ Bill seeking to impose a legal duty on employers to prevent sexual harassment in the workplace and to protect staff from third party harassment has hit an unexpected stumbling block on its passage through the House of Lords.
Equality Act 2010
Sexual harassment is defined in the Equality Act 2010 as unwanted conduct of a sexual nature which has the effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
As the law currently stands, an employer can be liable if one employee harasses another in the course of their employment – even if the employer had no knowledge of the offence. In order to defend such a claim, the employer needs to prove that it took “all reasonable steps” to prevent the harassment. That is notoriously difficult when harassment is found to have occurred.
The Equality Act historically contained provisions which meant that employers could be liable if an employee was harassed by a third party in the course of their employment, but those provisions were repealed in 2013.
Worker Protection (Amendment of Equality Act 2010) Bill
The Worker Protection (Amendment of Equality Act 2010) Bill was introduced to the House of Commons at the end of 2022 seeking to:
- reintroduce employer liability for harassment of employees by third parties, such as clients and customers; and
- impose a new proactive and positive duty on employers to take “all reasonable steps” to prevent sexual harassment in the workplace from taking place.
The new duty would be enforced by the Equalities and Human Rights Commission and employment tribunals would also be able to uplift compensation by 25% where an employee successfully brings a claim for sexual harassment and the employer is found to have breached this duty.
The Bill was introduced against a background where campaigners say that one in five adults have experienced sexual harassment in the workplace, with particular concern for employees in the hospitality sector where it is alleged that half of employees have experienced sexual harassment at work.
While the Bill was intended to lead to greater protection against harassment at work for employees, concerns have been raised in the House of Lords about the potential implications on freedom of speech. It has been proposed that the Bill is amended to emphasise that. Namely, it is proposed that, in certain circumstances, an employer would not be liable if harassment resulted from an employee overhearing conversations at work in which opinions were expressed on “political, moral, religious or social” matters. Multiple further amendments have also been proposed which means that the Bill needs to return to the House of Commons and may run out of time to get through before the end of the Parliamentary session. This is one to watch out for.
If you have any queries about the implications of this Bill or would like advice on protecting your employees from harassment, our PRM team would be happy to help.