Read Bill Ministerial Extracts
(1 year, 10 months ago)
Commons ChamberI beg to move, That the Bill be now read a Second time.
I was very excited to be placed 15th out of 20 in the private Members’ Bills ballot earlier this year. My number was 461 because in 2017 I was the 461st woman ever to be elected to Parliament. I owed it to my winning number to introduce a Bill that would improve women’s equalities, rights and protections. The Bill will protect not only women but all employees from sexual harassment in the workplace, but the great majority of people affected by the new legislation will be women.
I thank the Fawcett Society and the Government Equalities Office for their tireless work on drafting the Bill and for many prior years of campaigning. My thanks also go to the Women and Equalities Committee, whose inquiry into workplace harassment led to a 2018 report that was influential in driving the proposed changes in the law.
For too long, women and girls have been unsafe in the workplace. An Opinium survey suggests that 20% of the UK population have experienced some form of sexual harassment in the workplace. That is more than 10 million people—a shocking number. It is therefore right and imperative that the law changes to protect people in work. In these testing times, such legislation is more important than ever.
Harassment is both morally unacceptable and bad for the economy. Evidence suggests that disrespectful and abusive work practices lead to lower performance and productivity and increased staff turnover. Even for those who are not compelled by the moral reasoning behind increased protection from workplace harassment, it is hard to ignore the economic arguments.
The 2018 Presidents Club scandal highlighted the extent to which people are currently unprotected by the law. In that instance, young female hostesses were allegedly sexually harassed by businessmen at a notorious men-only dinner, being instructed to wear “black, sexy shoes” and black underwear. Those women, who faced violations of their dignity, would not have had recourse to the law as it stands. Sexual harassment by third parties is a major problem in the UK. A 2017 survey suggested that 18% of those who had experienced workplace sexual harassment said that the perpetrators were clients or customers. Some 1.5 million people have been harassed by a third party, meaning that clients or customers were allowed to harass 1.5 million workers.
Workplace sexual harassment is widespread and widely under-reported. A TUC survey suggested that 79% of women do not report their experience of sexual harassment, for many reasons including fear of repercussions, lack of awareness regarding their rights and fear of not being taken seriously. Those concerns are heightened for people of colour, people in the LGBT+ community and people with disabilities, who already face greater discrimination in the workplace. It is understandable why people do not come forward. For one, it is not just third parties who harass people, with 20% of surveyed women suggesting that their direct manager or someone else with direct authority over them was the perpetrator. It therefore goes without saying that any reporting could have direct career implications for those involved.
Whether sexual harassment is by a third party or not, employers have not done enough to prevent and punish it. The Equality and Human Rights Commission found that in nearly half of cases reported, the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser. It seems that the risks of reporting sexual harassment can outweigh the merits. That is disgraceful in modern Britain. The problem is that the current laws on sexual harassment mean that employers often adopt individual responses to institutional problems. That creates space for employers to minimise what is going on and leads to confusion about how to respond appropriately. Statistics show that only 45% of managers felt supported by their organisation when reports were made to them. Ultimately, the current laws leave people who have encountered traumatic experiences unsupported. We can and must do better.
The Government agree that more needs to be done to tackle sexual harassment in the workplace. In their 2021 response to a consultation on workplace sexual harassment, the Government committed to introduce a new preventative duty for employers, to provide more explicit protections from harassment by third parties, and to support the EHRC to develop a new statutory code of practice on workplace harassments. For things to improve, we need a shift in focus from redress to prevention. Currently the question of whether employers have taken adequate steps to prevent sexual harassment arises only as a defence if an incident of sexual harassment has already occurred. That means that employers are not required to take actions that prevent sexual harassment. Indeed, the EHRC found in 2018 that only a minority of employers had effective processes in place to prevent and address sexual harassment.
The Bill would provide the shift in focus that is so desperately needed. Clause 2 would ensure that employers prioritise prevention by imposing a new duty on them to take “all reasonable steps” to prevent their employees from experiencing workplace sexual harassment. That will not require employers to do anything substantially more than what they currently must do to avoid legal liability for acts of harassment carried out by their employees, but it would mean that employers could potentially be further held to account if they have failed to take those actions, first by an uplift in the compensation awarded at an employment tribunal, and secondly through the EHRC’s strategic enforcement. That will, I hope, push employers to prioritise prevention of sexual harassment, including through improving workplace practices and culture.
The new duty would operate through dual enforcement. The EHRC may take enforcement action for a breach or suspected breach of the duty under its strategic enforcement policy. This means that women would be able to inform the Equality and Human Rights Commission of any concerns without necessarily having to take forward legal action against their employer. In addition, the employer’s duty will be enforceable by the employment tribunal in individual cases. Where the employment tribunal has found in favour of an individual claim of sexual harassment and has ordered compensation to be paid, the tribunal will examine whether and to what extent the duty has been breached.
Where a breach is found, tribunal judges will have the power to order an uplift of up to 25% of the compensation awarded. The Bill will also introduce explicit protections against third-party harassment in the workplace. Clause 1 would make employers liable for the harassment of their staff by third parties, such as customers and clients, where they have failed to take all responsible steps to prevent such harassment from happening. These protections will apply to all acts of third-party harassment in the workplace, including racial as well as sexual harassment.
Once again, there will be a system of dual enforcement. Individuals will be able to bring claims to an employment tribunal in the usual way for work-related cases under the Equality Act 2010. The Equality and Human Rights Commission will have strategic enforcement powers. Compensation will be assessed in the usual way for Equality Act claims, with the same uplift outlined earlier available in cases where a breach of duty has also been established following a successful third-party sexual harassment case.
A claim for third-party harassment could be brought after a single incident of harassment. This replaces the previous “three strikes” formulation, whereby employers needed to know of two previous incidents of third-party harassment before they could be considered liable, but employers will be able to rely on the “all reasonable steps” defence in the usual way. To ensure that employers are as informed as possible about the proposed changes, which will come into force 12 months after Royal Assent, the Government Equalities Office will support the Equality and Human Rights Commission in creating a statutory code of practice on sexual harassment and harassment in the workplace. This will be based on the technical guidance that the Equality and Human Rights Commission published in 2020 and will be introduced as the new legislation comes into force.
The Equality and Human Rights Commission will have a duty to consult on this code of practice in advance. In the meantime, the Government Equalities Office has produced guidance for employers on how to prevent sexual harassment, which I understand it is looking to publish in due course.
Let me finish by turning away from the technical details of the Bill, and return to the wider set of circumstances that makes it important for us to pass this legislation. An unacceptable number of nurses, paramedics, bar staff, people who were key workers during the pandemic and everyone in between are being subject to a form of harassment that causes a variety of harms, including psychological, physical and economic harm. Employers should be required both morally and legally to take all reasonable steps to stop sexual harassment from occurring. The fact that the law of this country does not compel them to do so is a concern.
For too long the onus for challenging sexual harassment has been on individuals. Our current laws mean that employers do not know how to respond to cases appropriately, which leaves people who have encountered traumatic experiences unsupported. Introducing a standalone preventive duty for employers will shift the responsibility from individuals to the institution. It will prevent harassment and protect victims, and it will drive a change in the culture around victim blaming. I urge that this House supports my Bill, enshrining in law historic measures to protect employees from harassment in the workplace.
I thank everybody across the House who has given support to this Bill and already committed to serving on the Committee that will ensure that the Bill progresses through the House.
I rise to support the Bill in the name of the hon. Member for Bath (Wera Hobhouse). The reality is that we as MPs do not work regular hours; we work incredibly long hours, as we all know. Most people are working between 37.5 hours and 40 hours on average a week and it is absolutely right that they should feel safe in the workplace in which they are working. I welcomed the Equality Act 2010 and the employer liability it implemented, but unfortunately cases are still rising and the Act now needs to go further to protect employees. Where employees are given appropriate support when sexual harassment takes place, it is extremely welcome, but that is far too infrequent. We need to encourage it.
I therefore encourage the removal of the three-strike rule. We all make mistakes at times, and owning up and apologising is a very good way of ameliorating those mistakes. When people commit sexual harassment, however, that is not a mistake; that is predatory. We should call it out for what it is and we must not allow it to continue. The fact that at the moment employees may have to suffer three strikes before action is taken is completely unacceptable—a single time is once too many. It shocked me to hear that 79% of women do not report sexual harassment in the workplace because they fear repercussions, losing their job or losing their livelihood. We must make that change, and I welcome the fact that this Bill will enable that to happen.
We should also remember, however, that it is not only women who suffer sexual harassment in the workplace; men also suffer, so we must ensure that those cases are covered. In most cases, men are very embarrassed to report sexual harassment. We have that classic British stiff upper lip, which leads to rising concerns for men’s mental health and the rise in suicides that can follow.
It is important that employers take measures to prevent sexual harassment from taking place, and the clause providing for such measures in the Bill is very welcome. If an employer breaks their duty, they should pay for it, because it is their responsibility to ensure everyone is safe and protected. I trust that once the Bill passes this House and the other place we will see the number of cases falling rapidly, so that everyone can feel safe in the workplace. No one should have to fear having to come to work and suffer harassment. I support the Bill.
I thank the hon. Member for Bath (Wera Hobhouse) for bringing this important Bill to the House. She spoke very well to make the case for the great need for a change in the legislation.
I will be brief, because I am keen for this Bill to progress to the next stage. Last year, the Fawcett Society released harrowing research into sexual harassment in the workplace showing that, despite the bravery of the #MeToo movement in coming forward to challenge abuses of power by employers and others in the workplace, harassment, particularly sexual harassment, remains a deeply concerning problem that should worry us all. Two in five women report that they have faced harassment in the workplace.
What is more, a report from the Government Equalities Office has indicated that 80% of women who have faced harassment in the workplace do not go on to report it. I am sure all of us on both sides of the House are committed to stamping out that abhorrent behaviour and abuse, and the Opposition stand committed to this Bill. After all, by making employers liable for harassment committed by clients and customers, the Bill reintroduces the provisions that the last Labour Government introduced under the Equality Act 2010, but that the Tory-led coalition Government ditched in 2013, claiming that the protections imposed an unnecessary burden on business.
Let me be clear: protecting people from harassment, especially in the workplace, is never a burden; it is a responsibility. Nine years since the protections were first removed, it is welcome that the Government have finally realised the error of their decision. However, we should not have had to wait so long for them to do so, especially given that, like so many of this Government’s initiatives, the consultation on strengthening protections against harassment in the workplace was launched back in 2019.
Labour supports the Bill, but I repeat that the Government should never have repealed those important protections for working people. We should be dramatically extending the protection already available, rather than having to reintroduce it.
I congratulate the hon. Member for Bath (Wera Hobhouse) on promoting this important Bill, as well as all those who have spoken in this brief, but I would argue important, debate. The significance of the issues addressed by the Bill cannot be overstated. The 2010 survey from the Government Equalities Office found that nearly three quarters of people had been affected by sexual harassment in their lifetime, while two in five had experienced it within the last 12 months. In the world of work those rates remain unacceptably high, with 29% of people having experienced harassment in some form in the past 12 months. That is nearly one in every three people. It is therefore rather auspicious that this debate has fallen in the week coinciding with the fifth anniversary of the #MeToo movement going viral.
On 15 October 2017, the words #MeToo were shared on Twitter by 12 million people around the world, including me, and the Government believe that is important and have taken significant steps to combat sexual workplace harassment in the past five years. We have had the implementation of the strategy to tackle violence against women and girls, and the UK has ratified two important international treaties—the Istanbul convention on preventing and combating violence against women and domestic violence, and the International Labour Organisation’s violence and harassment convention, which was the first international treaty to recognise everyone’s right to a workplace free from violence and harassment. The UK will continue to work to lead the world in that area.
It is important to recognise that, as we have heard, workplace harassment can affect anyone, regardless of industry, profession, age, race, sex, or sexuality. Anyone can be a victim, with men reporting almost similar levels of harassment, as highlighted in the debate. The Government are therefore pleased to share and support the Bill, and while the Equality Act 2010 already contains a robust legal framework against workplace harassment, the measures in the Bill provide an important strengthening of those protections and a renewed focus on prevention, which we hope will lead to a reduction in workplace harassment across the country.
We have listened carefully, and I am extremely keen to see the Bill progress. My hon. Friend the Member for Harrow East (Bob Blackman) was correct to highlight that it is not just women who are affected, and we need to protect employees from predators. I thank the hon. Member for Bath for promoting this Bill, which is an important step change in the protections available against workplace harassment. As the debate on the future workplace proceeds post pandemic, the Government are committed to ensuring that everyone feels safe and supported to thrive. We strongly support the Bill.
I thank everybody for their support for the Bill. As has been said, this issue does not affect only women; it affects anybody who is in work and should be protected from harassment. It should particularly introduce a culture change so that harassment in the workplace is a thing of the past. I thank hon. Members across the House, and look forward to the progress of the Bill.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
(1 year, 8 months ago)
Public Bill CommitteesI have a few preliminary reminders: please no food or drink; switch your electronic devices to silent; and Hansard colleagues always appreciate having your notes emailed to them.
My selection and grouping list for today’s sitting is available online and in the room. As you can see for yourselves, no amendments have been tabled. We therefore have a single debate on all the clauses.
Clause 1
Liability of employer for harassment of employee by third parties
Question proposed, That the clause stand part of the Bill.
Thank you, Mr Paisley. Before I go through the details of the Bill, I thank the Minister and Committee members for joining me to examine the Bill. I also thank the Government’s Equalities Office and the Fawcett Society for their excellent work and support over recent months. It is wonderful to see such cross-party co-operation to ensure that this important legislation makes progress.
Workplace sexual harassment is a blight on our society. It remains widespread and vastly under-reported. Half of British women and a fifth of men have been sexually harassed at work or a place of study. Too many people have been left to suffer for too long. The question of whether employers have taken adequate steps to prevent sexual harassment arises only as a defence if an incident of sexual harassment has already occurred. Employers are therefore not required to take actions to prevent sexual harassment. That leaves individuals with the burden of challenging it.
The Bill, which passed its Second Reading last month, introduces two new measures to strengthen protections for employees against harassment. The first is the introduction of explicit protections for employees from workplace harassment by third parties, such as customers and clients. The second is the introduction of a duty on employers to take all reasonable steps to prevent their employees from experiencing sexual harassment.
I now turn to the Bill’s substance, covering each of the six clauses. Clause 1 creates employers’ liability for harassment of their employees by third parties. In particular, the clause amends section 40 of the Equality Act 2010, which already makes it unlawful for an employer to harass their employees or their job applicants, by inserting proposed new subsections 1A and 1B.
Proposed new subsection 1A will make an employer liable if they fail to take all reasonable steps to prevent the harassment of their staff from third parties in the course of their employment. That includes all types of harassment under the Equality Act, including racial harassment and harassment in relation to sexual orientation, as well as sexual harassment. Proposed new subsection 1B defines a third party as someone other than the employer or a fellow employee. That would include customers or clients. In practice, therefore, employers will now be legally required to consider the harassment risks that third parties may pose in their workplaces, and to take steps to protect their staff.
No other conditions are attached to the third-party protection, and an employee will be able to bring a claim for third-party harassment after a single incident of harassment. The Bill therefore does not replicate the repealed “three strikes” formulation in the pre-2013 version of section 40 of the Equality Act, under which employers needed to know of two previous incidents of third-party harassment before they could be considered liable. The rationale is that there should be no distinction between being harassed by a colleague or a client when it comes to the legal liability of employers and to employees seeking recourse. The measure will also provide better clarity for both employers and employees, and avoid the unnecessary complexity arising from the “three strikes” formulation. The third-party harassment protection will be enforceable in two ways: first, by individuals bringing claims to the employment tribunal; and secondly, by the Equality and Human Rights Commission using its existing powers.
In cases where individuals are willing and able to bring claims to the employment tribunal, claims of third-party harassment will be considered in the usual way for work-related Equality Act claims. Compensation in such cases will be decided by the employment tribunal in the same way as existing Equality Act claims, which involve considering a number of factors, including financial loss and “injury to feelings”.
Clause 2 inserts new section 40A into the Equality Act to create a new duty on employers to take all reasonable steps to prevent sexual harassment of their employees. The phrase “all reasonable steps” is well understood as it is a statutory defence in section 109 of the Equality Act. Employers currently can show that they have taken all reasonable steps to prevent the harassment or discrimination of their employees when defending such claims and will therefore be familiar with the concept. The provision is to make sure that employers will quickly get behind this legislation.
The Bill will not define “all reasonable steps” because what could be considered reasonable will vary between employers, taking into account factors such as their size, sector and specific circumstances. Tribunals are adept at applying the concept, which ensures that employers can take a proportionate approach appropriate for their circumstances. All that is to ensure that everyone—employees and employers—can get behind this legislation because it is about a culture change in our society.
I congratulate the hon. Lady on getting her Bill to this stage.
On the point about culture change, I should say that a few weeks ago a 16-year-old in my constituency came to see me about negative behaviour from boys and men, including rape jokes that the adults around her and her friends just dismissed as “boys will be boys”. That is the sort of thing that happens in the workplace, too. Does the hon. Lady agree that the earlier we educate boys about how to treat girls, the less likely they are to become men who mistreat women in the workplace?
I thank the hon. Gentleman for that intervention. Absolutely—this legislation should be a step in the right direction towards culture change. That cannot start too early; obviously, by the time someone is in the workplace they might already have started to take the wrong attitudes. Whenever we talk about sexual harassment, we always mention the importance of education and of starting early and understanding relationships and consents. That is the most important thing. We do not want legislation that creates a lot of criminals and offenders; it should encourage people to do the right thing and to have the right behaviour in all places in society, including the workplace.
The question of whether an action is reasonable is also familiar in domestic civil law: more specifically, in the Equality Act—for example, the duty on employers and service providers to make “reasonable adjustments” for disabled people. To help employers understand what is expected of them, the Government will be supporting the Equality and Human Rights Commission to develop a statutory code of practice on workplace harassment. A breach of the new duty will be enforceable in two ways. First, it will constitute an unlawful act under the Equality Act 2006, and therefore be enforceable by the Equality and Human Rights Commission under its existing powers. There are already good and reasonable laws in place, but sometimes people may not know that they exist. Employees in particular may not know that they have recourse to them. This legislation also reinforces our campaign to make sure that everyone knows their rights.
The EHRC may undertake strategic litigation, investigation and enforcement activity for any suspected breach of the new employer duty, regardless of whether an individual has submitted a legal claim to the employment tribunal. That is an important change, because previously that was not possible. The EHRC can act on its own behalf. That enforcement route removes the onus from the individual, who may not wish to bring legal action against their employer, and enables an employer’s systemic non-compliance with the duty to be addressed by other means. Again, that is about empowering our workforce to understand their rights and to ensure that the onus is not always on the individual. Secondly, the duty is enforceable by individuals bringing claims to an employment tribunal in certain circumstances. Clauses 3 and 4 set out the details of the duty’s enforcement.
Clause 3 amends section 120 of the Equality Act, which sets out areas where employment tribunals have jurisdiction to determine when a complaint is made. The clause provides that a claim for a breach of the duty cannot be brought as a stand-alone claim to an employment tribunal. That means that tribunals cannot consider individual claims for a breach of the employer duty, other than in cases where a sexual harassment claim has been upheld. The rationale is that to allow otherwise would risk broadening and complicating the duty’s scope beyond the intentions of the policy. For example, it might enable someone to bring a claim that simply challenges a company’s perceived inadequate policy or training. This risks creating uncertainties for employers and undermining the policy aims.
Clause 4 concerns the compensation awarded by an employment tribunal for a breach of the new employer duty. It inserts new section 124A into the Equality Act. It provides a new remedy for breaches of the employer duty in cases where the tribunal has upheld a claim involving sexual harassment and ordered compensation to be paid. The new section provides that the employment tribunal must consider whether and to what extent an employer has also breached the new duty created by clause 2. As a result, the duty will be considered automatically by an employment tribunal following any successful sexual harassment claim where compensation was awarded.
In practice, that means that in each sexual harassment case brought to the employment tribunal where the tribunal has found in favour of the victim and awarded compensation, it must then consider whether there has also been a breach of the employer duty—whether the employer failed to take all reasonable steps to prevent the harassment from occurring. That would also include cases of third-party sexual harassment.
If the tribunal finds that a breach of duty has occurred, the employment tribunal judge may order an uplift of up to 25% of the compensation awarded. The exact amount of the compensation uplift is at the tribunal’s discretion, but it must reflect the gravity of the breach. This means that the tribunal’s decision will consider the specific circumstances of each workplace and avoid overall disproportionate awards.
Clause 5 relates to the enforcement of the new employer duty by the Equality and Human Rights Commission. It makes some consequential amendments to ensure that the Equality Act 2006 works properly with the new duty.
Clause 6 provides that the Bill extends to England, Wales and Scotland. It does not extend to Northern Ireland, where employment law and equal opportunities are devolved. It also sets out that the Bill will come into force one year from the day it is passed, which will ensure that employers have sufficient time to understand the new legislation and take any appropriate action to comply with the new measures before they are enforced.
Employers will be supported in this transition through the Equality and Human Rights Commission’s new statutory code of practice on workplace harassment, which will improve employers’ ability to engage with their existing duties and help them to understand whether they have taken all reasonable steps to prevent harassment. The Government also plan to publish their own advice for employers in due course.
We have turned a blind eye to workplace sexual harassment for far too long. This Bill will help to prevent harassment, protect victims and change the culture around victim blaming. Obviously, the Bill is not enough on its own to tackle workplace sexual harassment. However, it is a step in the right direction in protecting employees from harassment at work. I hope it will continue to get the support it deserves. I thank all members of the Committee, the Government Equalities Office and the Government for supporting the Bill.
It is a pleasure to serve under your chairmanship, Mr Paisley. I commend the hon. Member for Bath for bringing this Bill forward. That is a lot of work, and it is difficult, but it is great to be able to work across the Committee to do it.
The statistics about how many women in customer-facing roles in particular face sexual harassment are shocking. I think most of us who have been in that position recognise the gravity of that. It has been a pleasure to serve on the Committee. I recognise the serious nature of this legislation, and I wish the hon. Lady well with the passage of the Bill.
I commend my hon. Friend the Member for Bath for bringing forward this Bill, which is particularly important in stressing the employer’s liability. Most of us—most women, certainly—have faced some sort of sexual harassment in the workplace at some point in our careers, and one of the main issues was that it was much easier to solve it quietly or sweep it under the carpet because the employer had no liability to act. This Bill is a great step forward in tackling workplace sexual harassment and changing that culture, which is so insidious. We must recognise it and ensure that action is taken.
It is a pleasure to serve under your chairmanship, Mr Paisley. I rise to support the Bill, but I also want to say a few words about the hon. Member for Bath. She was elected in 2017, a few years after me, and has been a doughty champion for women’s rights. This is not the first time she has brought such a Bill to the House. In 2018, she introduced a very good private Member’s Bill about upskirting and the things that we turn a blind eye to. That private Member’s Bill was supported by the then Prime Minister, the right hon. Member for Maidenhead (Mrs May), and the extent of cross-party support demonstrates how strong the Bill was.
The hon. Member for Bath has worked really hard on abortion rights as well as on eating disorders, which are becoming more of an issue in society. They have always been an issue but are highlighted now more than ever because of the effect of social media. Another strand of her work is on violence against women. Even though we are not in the same party, I am very proud that she is in Parliament, because these issues are important for women and for society, and we have to fight for them and legislate on them, as all Members have said.
Sadly, a lot of young women have come to believe that sexual harassment is an unavoidable fixture of the workplace, and that is not how it should be; I will come on to talk about LGBTQ workers and women in the workplace who come from ethnic minority backgrounds. I am also supporting the Bill on behalf of our children who have not yet come into the workplace, so that when they do they will, hopefully, not have to see, experience or be a victim of sexual harassment.
It has been 16 years since the #MeToo movement started and five years since it was relaunched on social media. Here we are, 16 years later, still trying to legislate against harassment. I am not sure whether we should be celebrating, but it feels like it has taken a very long time to get here. The fact that we are here probably should be celebrated; at least we are doing something about the issue.
I thank the hon. Member for her powerful speech. Does she agree that the new provision in the Bill that individuals do not need to go through an employment tribunal procedure and can have recourse to the law in other ways is an important step forward?
Absolutely. I think it will go some way to addressing some of the issues I have outlined about women not wanting to go through the very difficult process of proving what has happened, and they will be treated more fairly. That is the justification for the Bill, so I absolutely agree.
I know quite a lot about this topic, but when I was researching the Bill the scale of sexual harassment experienced by sections of the workforce really shocked me as I read the statistics. Half of women and seven out of 10 LGBTQ+ workers have experienced some form of sexual harassment at work. That affects workers across industries, including retail, the NHS and financial firms—and right here in Parliament, as we know. We cannot pretend for any longer that sexual harassment is an individual concern that can be responded to ad hoc. As the statistics tell us, we face an institutional problem that requires an institutional response.
For years now, we have been encouraging victims of assault to speak up. That was the very crux of the #MeToo movement. We need to continue this work so that everyone feels able to report harassment, and we should not wait for people to become victims and perpetrators before we act. The reality is that the most powerful weapon we have against sexual harassment is prevention. I am very grateful to the hon. Member for Bath for setting out in the Bill the duty of care that the employers have to their employees. I am grateful that she is proposing an entrenched enforcement of this duty.
Does the hon. Lady agree that often in this place sexual harassment can be put down to banter and lively conversation, and that often the victim can be seen as somebody who is spoiling the fun? Does she agree that the Bill sends a powerful signal to employers and employees as to what appropriate behaviour is?
The hon. Member is absolutely right. Indeed, the hon. Member for Wantage made an observation about how rape jokes were just treated as part of the culture and a bit of banter. For someone who has a young daughter, it really does fill me with dread to think that rape jokes have become part of culture. The hon. Member for Truro and Falmouth is right to say that the victim looks like a person who cannot enjoy a joke or be light-hearted about it, but it is not light-hearted for people who have experienced something like that or know people who have and know the reality on the ground. There needs to be culture change.
I am grateful that this Committee is not all women, because I do not think it is just the responsibility of women to make advances on legislation like this. I am glad there are men in the room, and I am glad they are being supportive.
Is it not true that men can often feel quite uncomfortable but also feel like they have to be in it together? Does she agree that the Bill will strengthen men in their attitudes towards women?
I agree with the hon. Lady. The truth is that this is about culture change—and legislative change. I am grateful for the Bill because it empowers employers to take their duty of care to their employees seriously. Employees will respond by returning increased profits, productivity and motivation, so it will help the workforce economically as well—for anyone who doubts the importance of such measures.
The Bill on its own will of course not achieve the transformation that all workers need. This is not a silver bullet—I am sure the hon. Member for Bath agrees—because much more remains to be done. The Labour party is committed to creating safe, equal and fair workplaces where everyone succeeds, regardless of their gender or background. Among other things, the Labour party has been working on its new deal for working people. In that policy, we hope to tackle workplace discrimination and inequalities as a priority.
The Bill sponsored by the hon. Lady is the chance to make some progress right now. We owe that to victims of sexual harassment. Over the years, many of us have said, “Me too!” When the movement emerged, I was so shocked, because nearly every friend I spoke to and every family member turned around to say to me, “Me too!” I wondered whether I had met even one person who had not had that experience. That is a shocking statistic, which I hope we can change as we move forward.
The Bill is what we owe to our workers, present and future, and to our children. It heartens me to see so much cross-party support. Once again, I applaud the hon. Member for Bath for using the opportunity; she could have chosen any topic under the sun, but she chose this topic. I applaud her for championing it.
It is a pleasure to serve under your chairmanship, Mr Paisley.
I thank all hon. Members present for their forthright support for the Bill, which is echoed by the Government. As the shadow Minister, the hon. Member for Hampstead and Kilburn, pointed out, in particular we thank male colleagues who have come along and supported the Bill from the start, because that sends a strong message to the country that not only is there cross-party support, but that both male and female MPs support the legislation.
I thank the hon. Member for Bath for sponsoring this important legislation. As has been said, this is just one of many campaigns that she has run to protect women’s rights, especially on violence against women and girls. The Bill is a follow-on to her legacy in that space. Today, she set out clearly that workplace harassment is a pervasive issue, which should not be tolerated in modern Britain.
Sadly, however, as my predecessor referenced on Second Reading, an experimental survey by the Government Equalities Office in 2020 exposed that nearly three quarters of the UK population have experienced sexual harassment in their lifetime, with nearly a third of people in employment experiencing some form of sexual harassment in their working environment within the past 12 months. Those figures are, unfortunately, not surprising.
The Equality Act 2010 already provides employees with legal protection against workplace harassment, but the measures in the Bill take a significant step forward. The Government believe that such a shift will not only provide increased legal security for employees, but instigate wider cultural change by motivating employers to prioritise prevention and, ultimately, to improve workplace practices and culture.
I will shortly address the points made by hon. Members today, but I will first outline the Government’s ongoing commitment to change in this space, and in particular to the measures in the Bill. In 2019, in response to an inquiry by the Women and Equalities Committee, the Government consulted on the legal protections to do with sexual harassment in the workplace. The consultation exercise included a public questionnaire, alongside the technical consultation, and received more than 4,000 responses detailing people’s lived reality of harassment in the workplace, as we have heard so much about.
Listening carefully to the experiences and opinions shared, the Government committed to a package of new measures aimed at reducing incidences of workplace harassment. That includes the two legislative measures being brought forward in the Bill: explicit protections for employees from workplace harassment by third parties, such as customers and clients; and a duty on employers to take all reasonable steps to prevent their employees from experiencing sexual harassment.
Those measures were announced in July 2021 and continue to form a key part of the Government’s national strategy for tackling violence against women and girls. We therefore welcome the fact that the hon. Member for Bath is taking the measures forward in her Bill. In supporting the Bill, we look to honour the commitments that the Government set out last summer and to deliver real change for workers and working culture across the UK.
I want to point out that clauses 2 to 6 are about sexual harassment specifically, but I highlight the fact that clause 1—the employer liability for harassment—will require employers legally to consider harassment risks that third parties may pose. However, that will apply to all types of harassment, not just sexual harassment. It will include racial harassment, harassment in relation to disability or any other type. That is an important step forward as well.
To conclude, I reiterate my appreciation of the hon. Members present today. It is good to see such cross-party support in this space for this new legislation, which we hope will have a profound impact on working culture, and further protect and support employees at risk of harassment in the workplace. Support for the Bill is not isolated to this room, and I also thank the numerous organisations, individuals and parliamentarians who have been involved in the development of the new measures. Those include, but are certainly not limited to, the Government Equalities Office, the Fawcett Society, the Equality and Human Rights Commission and the Women and Equalities Committee. The last of those, along with the Joint Committee on Human Rights, sent a letter in support of the new legislation to the hon. Member for Bath. We hope to see such a collaborative spirit maintained as the Bill continues its progress through Parliament. Personally, I look forward to working with the hon. Lady to ensure that it does.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clauses 2 to 6 ordered to stand part of the Bill.
Before I put the final question to report the Bill to the House, I offer the sponsor of the Bill the opportunity to say a few thank yous.
My first thank you is to you, Mr Paisley, as Chair of the Committee. I again thank all members of the Committee, the Minister, the Government Equalities Office and everyone who has campaigned to ensure that this important change in the law goes forward. I look forward to further co-operation and further steps in the right direction to ensure that harassment of all sorts—as the Minister pointed out—is ultimately a thing of the past. We have a long way to go, but today is a good day and in the right direction.
I, too, congratulate the hon. Lady on sponsoring the Bill and getting it to this stage.
Bill to be reported, without amendment.
(1 year, 6 months ago)
Lords Chamber(1 year, 4 months ago)
Lords ChamberThat the Bill be now read a second time.
My Lords, it is with pleasure that I bring this Bill before you today. Its full title is the “Worker Protection (Amendment of Equality Act 2010) Bill”—and it does what it says on the tin. The Bill is about protecting workers specifically from workplace harassment. It amends the Equality Act 2010 to strengthen the legislative protections against workplace harassment committed by third parties, to ultimately help create safer working environments fit for the way we consider workers should be treated today.
I give my heartfelt thanks to my honourable friend the Member for Bath, Wera Hobhouse, for introducing such important legislation and guiding it through the other place. Under her excellent leadership the Bill received strong support from all parties, and from the Government; I hope we can replicate that in this House today.
Before I set out further detail on the measures in the Bill, I first turn to the important context behind it. Five years ago, the #MeToo movement went viral, with over 12 million people around the world sharing the phrase “Me Too” on social media as a declaration of the sexual harassment or violence they had each experienced. This global phenomenon kickstarted much-needed conversations, not only on social media and in the press but in this House. The resulting parliamentary debates and inquiries shone a spotlight on the many appalling experiences of sexual and other harassment in UK workplaces, and it became obvious that this country needed to do better for working people.
The Government Equalities Office’s own survey on sexual harassment in the workplace in 2020 found that nearly a third of all employees surveyed had experienced some form of sexual harassment in their workplace or work-related environment in the previous 12 months alone. This is truly awful—and up with this we must not put.
Recent revelations and press stories have also exposed the vulnerability of workers in this country to workplace harassment by third parties such as customers and clients. For example, we all remember the furore following the Presidents Club charity dinner in 2018, at which female hostesses were allegedly told to wear “black, sexy” underwear and subsequently accused customers of sexual harassment. However, the Equality Act 2010 currently provides no protections for people in such a situation, as the alleged harassment was conducted by a third party rather than a fellow employee. This is the loophole we are trying to close in the Bill. And it is not just third-party sexual harassment that workers are at risk of: there is currently no redress for any third-party harassment under the Equality Act 2010. For example, retail staff who face racist abuse from customers, NHS workers who are subject to homophobic harassment by patients, and pub staff who are harassed by drunken customers in relation to their sex all currently have to rely on the good will of their employer in taking steps to protect them, rather than the law. In the course of doing their job, nobody should have to face that.
The Bill will introduce employer liability for the harassment of their employees by third parties in the course of their employment if the employer has failed to take all reasonable steps to prevent the harassment, and it will introduce a new legal duty requiring employers to take all reasonable steps to prevent their employees experiencing sexual harassment in the workplace. Whereas the employer duty will apply to sexual harassment only, I should be clear that the new third-party harassment protections will cover all types of harassment under the Equality Act 2010. Both new provisions will be enforceable in two ways: by individuals bringing claims to the employment tribunal, and by the Equality and Human Rights Commission undertaking strategic enforcement under their current statutory powers. A breach of the new employer duty may lead to an uplift in compensation awarded to a claimant by an employment tribunal of up to 25% in individual cases.
I understand that there were and are some concerns about the Bill’s interaction with free speech. In particular, some have suggested that, as a result of the Bill, employers will feel that they need to take extreme steps to avoid liability for workplace harassment, including by shutting down conversations and valid expressions of opinion between third parties such as customers in a pub. However, noble Lords will note that, on Report in the Commons, a government amendment introduced into the Bill Clause 1(3), and proposed subsections (1C) and (1D) under Clause 1(2), to clarify for employers and the employment tribunal that such steps are absolutely not required. The amendment was accepted by Members in the other place, and I hope it assuages any concerns noble Lords may have in this regard, although I know that the Minister will speak to this when she makes her remarks.
Furthermore, I would like to highlight that the Bill will not come into force until 12 months after Royal Assent, during which time the EHRC will be developing a new statutory code of practice to take account of the measures in the Bill. This code will be published and subject to a full consultation. In addition, the Government have committed to producing further guidance for employers on the practical steps that they can take to help prevent harassment in their workplaces. These documents will help to make sure that employers know what is expected of them under the Bill and the wider Equality Act 2010, support them and employment tribunals in its accurate implementation and, in doing so, protect against any unintended consequences.
I, my honourable friend the Member for Bath and government officials are already in conversation with industry bodies, including UK Hospitality, to this end. However, in the light of assurances sought from me, can the Minister assure the Fawcett Society and the #ThisIsNotWorking Alliance that the Government will closely monitor the impact of the government amendment and will take remedial action if it is found to be detrimentally interfering with the spirit of the wider reforms? The prize is to make third-party sexual harassment a thing of the past that does not belong in the culture of any workplace for any worker who has a customer-facing role.
To conclude, as my honourable friend the Member for Bath said in her own speech:
“We have turned a blind eye to workplace sexual harassment for far too long. This Bill will help to prevent harassment, protect victims and change the culture around victim blaming.”—[Official Report, Commons, 23/11/22; col. 6.]
I hope that my fellow noble Lords will help to ensure its safe passage, so that we can see it on the statute book as soon as possible. I beg to move.
My Lords, what was the freedom that we really felt the loss of during the pandemic and the associated lockdowns? I suggest that it was above all the freedom of association and assembly. We did not lose the right to speak out, to vote or to worship as we pleased, but we lost the right to congregate in whatever combinations pleased us. It seems to me that freedom of assembly rests fundamentally on freedom of contract. People should be allowed to come to freestanding agreements, one with another, without the state interpolating itself and declaring those agreements to be void.
This is a principle that, far from having been strengthened by our recent experience, appears to be abandoned the world over, in this country not least. We are subject, as so often, to trends from across the Atlantic. This is happening on both sides of the aisle, as they say on the other side.
There has always been a chunk of, let us say, the identitarian left that has subordinated the concept of free contract to the imperatives of identity politics, so all questions of freedom of association tend to be seen through the prism of whether some imaginary club would be allowed to exclude somebody on the grounds of ethnicity. I suppose it is conceivable that such a thing could happen today, but it seems an odd way to determine a general principle. Hard cases make bad law, and hard imaginary cases make particularly bad law.
However, I am more interested in the way the concept of free association and free contract is under attack from the right. I was very struck, for example, by the Governor of Florida, who is being talked up as a potential presidential candidate. He bases a lot of his campaign on having kept Florida open and having avoided the worst of the lockdowns, and yet, such is the nature of the culture war, he was passing laws in Florida outlawing vaccine mandates even on private property—and that seems to me a fundamentally illiberal thing to be doing.
For what it is worth, I thought vaccine mandates were difficult to justify. We now know that vaccines were very good at protecting you but actually very bad at preventing transmission and therefore the case for state intervention was weak. But be that as it may, surely an individual shopkeeper, cafe owner or whatever is allowed to require whatever terms he or she wants from his or her customers. If they say “You can’t come in here without wearing a mask” or indeed, “We won’t serve you without a tie” or “You can’t stay in this hotel with children or pets” or whatever, surely that should be fundamentally a question of freedom and property. Yet, like so many of these trends, it is crossing the Atlantic, and we now in this Bill are starting from the assumption that it is up to the Government to determine things.
I am going to leave the free-speech stuff as I see my noble friends Lord Strathcarron, Lord Leicester and Lord Moylan are speaking after me. I will leave it all to them. I have listened to my right honourable friend the Secretary of State in another place and she says that all these things have been anticipated, and I am sure she would agree with what the noble Baroness, Lady Burt of Solihull, said about the amendments to prevent conversations becoming a source of harassment. But I think there is a wider issue here. Should we not be starting from the proposition that, without a very good reason, it ought to be up to the employer and the employee to seek terms? I find it extraordinary, for example, that we are seriously discussing in this country at the moment whether there should be a statutory right to demand working from home or flexible work. You can do that now. What is to stop anyone saying to their employer, “These are the conditions I would like” and then negotiating them? The idea that we have to go to the Government and get a sort of licence to talk about these things strikes me as fundamentally incompatible with being an open society.
So I ask the Minister: are we certain that we have exhausted every other avenue before we reach for further legislation? It seems to me a fundamental principle of a free society that if I want to work for, let us say, my noble friend Lord Roberts of Belgravia, and he offers me a job, and I am happy with the terms of the contract and so is he, the Government should not come between us and declare our arrangement to be illegal. If, for example, I say, “D’you know, I don’t care about paid holiday, I’d rather have a lump sum”, that should be between us. Is that not fundamentally a question of what we mean by freedom and property?
So please will the Minister reassure us that we have exhausted our arsenal? We have perfectly good, old common-law provisions defending the individual against harassment. We have perfectly good laws against incitement. They do not cease to apply in the workplace. Are we certain that we need this additional legislation and that it is not the worst kind of declamatory legislation—virtue signalling by law—because those statutes invariably end up being the ones with the most unintended consequences?
My Lords, I declare two levels of interest, as a publisher and trustee of a national designated museum.
My objections to the Bill concern only the effect of Clause 1 on freedom of speech and the inadequacies of the government amendments. Everyone knows about the law of unintended consequences, but more relevant here would be another famous law: the law of dangerous assumptions. The assumptions here are threefold and concern the three categories involved: employers, employees and third parties. The Bill assumes that employers are overwhelmingly uncaring and unsympathetic towards their employees. It assumes that employees need to be treated like a protected species, unable to deal with the comings and goings of life in the workplace, and it assumes that third parties—the general public—are disproportionately likely to be foul-mouthed, insensitive and unwittingly offensive.
These unrealistic assumptions amount to a classic case of a solution looking for a problem. In this case, the solution is so draconian, and the size of the problem so minuscule, that the free-speech aspect of the Bill fails the first and most elementary parliamentary test: is it really necessary? The cumulative effect of these unrealistic assumptions can be seen in the Bill as it stands: to turn our fundamental right to freedom of speech into a management-style risk. These may or may not have been the intentions, but they will certainly be the consequences. I prefer the charitable interpretation that they are not intentional, and they just have not been thought through. Thankfully, that is the task of your Lordships’ House as we scrutinise what comes our way.
To take real-world examples of why this part of the Bill will not work in practice, I refer to my declared interests. I publish about 50 books a year and the marketing of each book requires that my team come into contact with the general public—third parties—either at a book launch or a literary festival, or sometimes both. To take the example of a book launch, this would be a private event with invitations sent out to between 50 and 100 guests and I would typically have three or four employees there. In order to be said to have taken “all reasonable steps”, I should on the invitation request that guests do not talk to staff about any subjects relating to sex, gender, race, religion, origins or any other sensitive matter—even if what one says is perfectly legal. I ask your Lordships, after seeing such an invitation—one that discourages any form of legal sociability—would you go to such a cold-water event? Would Waterstones, for example, risk an in-store book signing by JK Rowling or Helen Joyce on the offchance that one of the author’s fans might be wearing a T-shirt that says, “Woman Equals Adult Human Female”, knowing that an employee could sue for hurt feelings—real or vexatious? These are real issues facing real businesses. I suggest we are wading into very dangerous waters.
Less parochially than my own media world, do we really want to live in a society where intelligent people cannot talk to each other openly and legally, for fear of saying something unintentionally offensive in the ebb and flow of normal conversation? Do we really want these conversations to have any rules at all, beyond being legal, let alone to be governed by the ever-evolving vagaries of compliance culture, guarding against the tiny percent who might offend, probably accidentally.
The rules change all the time. If I said the words “woman” or “headquarters” at an Oxfam event and one of its employees took offence and complained, how much trouble would it be in? I note that it invented the offence only a few days ago. I hope we can agree that this is a nonsense that turns one of our most basic freedoms—freedom of speech—from a right to a risk.
The museum I mentioned is a charity, and we receive about 400,000 visitors a year—all totally random members of the public, with totally random views on any particular subject. We have a staff of about 100, many of whom will come into contact with the visitors—the so-called “third parties” mentioned in the Bill. It is quite possible that a few of our staff might be among those who are recreationally offended. If we are very unlucky, there might be one who is professionally offended, and there may be a few who are just easily offended. We just do not know, because we have never had to pry into the private prejudices of our staff before, as we will now have to do to protect ourselves, if these provisions stand.
On the other side of the gate, by no means can we expect all of the 400,000 visitors to be up to date with the current thing, to be courteous or even to be sober. Any encounters between our visitors and staff are totally outside our control. What one is saying to the other is almost certainly legal, and yet, under the terms of the Bill, we will be responsible for the outcomes. This is not only obviously unfair; it is unworkable and inevitably adds totally unnecessary costs for the charity.
On Report in the other place, the Government added last-minute free-speech protection amendments but, on close reading, all these conditions would have to apply in each occurrence, which, taken together, amounts to an extremely narrow and highly unlikely set of circumstances. As I said, this was all done in a last-minute rush and has not been properly thought through. This is easily remedied by adding the word “or” to them, which would at least mitigate some of these encroachments, although, at this stage, we are dealing with least-worst options, regrettably.
My Lords, I declare my tourism and leisure interests—within those businesses, I have probably 250 employees. I am extremely concerned about the Bill, which will have grave implications for freedom of speech as well as imposing huge compliance costs on Britain’s 1.5 million businesses. It is not an exaggeration to say that it is the most momentous and far-reaching piece of legislation currently before Parliament—yet it has received very little parliamentary scrutiny and provoked almost no debate in the public square. If the Bill were merely concerned with sexual harassment, I would have very few objections to it. Indeed, when it was flagged up to representatives in the hospitality sector, their understanding, without exception, was that the only form of third-party harassment that employers will be liable for if the Bill becomes law is sexual harassment. So there is a lack of understanding because of the lack of debate.
Clause 1 will create liability for third-party harassment of all kinds, not merely sexual harassment. Just as employers are currently liable if they have not taken all reasonable steps to prevent an employee overhearing another employee saying something offensive that relates to a protected characteristic, so they will now be liable if an employee overhears a member of the public saying something offensive. This should alarm any of us concerned with free speech, regulatory overreach and the spread of compliance culture.
If the Bill becomes law, businesses will treat their customers in the same way that they treat their employees, at least in some important aspects. Therefore, just like employees, customers are likely to be bound by formal and binding HR-style rules that govern how they interact with employees, so that the employer can demonstrate that it has taken “all reasonable steps” to prevent third-party harassment and so it can begin to manage the multifarious risks that arise from a legal prohibition against unintentional offence. Being told to use your staff’s preferred gender pronouns would be the tip of the iceberg.
Just earlier this week, I saw on Twitter—and I do not go on there that much these days—an unsavoury incident of a young trans woman filming herself shouting at a young server in a fast-food store. That server was doubtless themselves on the minimum wage. She was accusing him of misgendering her by calling her “sir.” The trans woman had evidently taken offence, but rather than quietly and politely correcting the young server that “he” was in fact a “she”, she was screaming blue murder and making quite a scene. The young worker was certainly harassed and could have a case against his employer, but how could the employer have guessed that this might happen? If they had guessed that this might be an eventuality, they could have instituted some gender recognition training, doubtless at a large cost to the company—and the quality of the training out there is arguable. Witness our own Valuing Everyone equally training here in this House, which was frankly patronising at best. That might have placated 48% of the 18-24 year-olds who believe that people should declare or display their pronouns, but not the remaining 52%, or the vast majority of older people who do not see the need or point of such virtue-signalling.
It is hard to conceive how any Government, least of all a Conservative one, should conclude that the compliance culture of HR departments, with their dogmatic rigidity, unreflective worship of fashionable orthodoxy and complete deadness to nuance and complexity, should be expanded beyond the workplace and into pubs, shops, theatres and sports grounds. Yet that is precisely what this Bill will do.
The Equality Act has chilled the atmosphere in workplaces up and down the country with people living in fear of saying the wrong thing and being reported to HR. That chill is now going to spread beyond the workplace into those places where people spend their leisure time. Is that really what the British people want—to live in a society where, if they are overheard telling a saucy joke or expressing an incorrect opinion, such as saying that they do not think trans women are women, they could be permanently banned from their favourite pub or restaurant? Hugh Osmond, the head of Punch Taverns, said:
“How could we stop a group of people coming into a pub and having an offensive chat in the comer? You may even need extra staff walking around the pub policing conversation. You wouldn’t find rules this strict in China or Russia”.
I question whether the UK’s under-threat pub sector will be able to shoulder the compliance costs and liability that Clause 1 imposes. An industry predominantly made up of small owner-operators, who do not have the resources to deal with this, is already under threat. One reason I voted to leave in the 2016 referendum was that, when we joined the EEC more than 50 years ago, Europe had 33% of world trade. When we voted to leave the EU, its share of trade had fallen to 17%. My take on this is that the EU is effectively legislating itself out of business. Extra-burdensome legislation is the last thing that this country needs as we struggle with the cost of living crisis, the mountain of debt built up as a result of our handling of the Covid pandemic, and inflation. This Bill needs a huge rethink.
My Lords, it pains me to find myself in disagreement with the noble Baroness, Lady Burt of Solihull, with whom I have worked on another cause in your Lordships’ House and for whom that I have the highest respect. I know she is motivated only by the highest considerations in bringing forward this Bill.
First, I shall address Clause 2, which I do not think has been mentioned so far. I wish to summarise and dispose of it, so to speak, but I want to come back to it later, which is why I think it is worth mentioning. Clause 2 imposes a duty on employers to prevent sexual harassment in the workplace. It is already the case that sexual harassment in the workplace can give rise to actions against employers, but there is no corresponding duty on their part to prevent it happening. This clause is aimed at filling that gap—uncontroversially, in my view—and that is absolutely fine.
The meat of the Bill is in Clause 1. Clause 1 is an attempt to respond to, in some ways, the events that occurred at the Presidents Club dinner some years ago, which, I say straight away, in my opinion were wholly reprehensible and should not have been allowed to happen, and the people involved should have some form of redress. I believe they do but not necessarily through the Equality Act as it stands, hence Clause 1 coming forward to address those issues.
I am grateful to the noble Baroness, Lady Burt, for arranging a meeting for me with the Government Equalities Office, which supports the Bill. I am grateful too for the written briefing that I have had from the Fawcett Society, in which it draws attention to the fact that 56% of women working in the hospitality sector experience sexual harassment. That is clearly unacceptable, but the first question to ask is: does Clause 1 do anything for them? What does it do for the people who served and were abused at the Presidents Club dinner? I think it probably does nothing for them at all, because it specifically says that it applies to employees.
I know nothing about the Presidents Club dinner and the particular arrangements on that occasion, but I know that, in general, it is the case that where large banquets and other events like that take place, even in hotels, the staff are normally supplied by a silver service agency, which does not employ them in the first place. I once had an office in the same corridor as a silver service agency—a very reputable firm that supplied staff to many events throughout London. The office was occupied only by the owner of the business and his secretary; there were no other employees. The staff who were supplied to wait at table at such events were very often students and people like that. They were part of a contact list, and the owner would assemble these people as occasion required. They were contract workers. Section 40 of the Equality Act defines employees, and generally speaking the status of employee arises for someone who has a contract of employment. However, a contract worker is not an employee, and they are dealt with in a separate part of the Equality Act.
So my first comment is that I do not think that Clause 1 would have done anything at all for staff working at the Presidents Club dinner, nor would it do anything for other people in similar circumstances, because large numbers of people in the hospitality sector are not in employed status but are in fact contract workers. It seems to me that the Bill does not even do what it intends and sets out to do.
Secondly—again taking the Presidents Club dinner as the starting point—the Bill chooses to go way beyond sexual harassment. Clause 2 is about sexual harassment but is not pertinent to the Presidents Club dinner. Clause 1 defines the harassment simply as “harassment”; it does not say “sexual harassment”. However, in Section 26 of the Equality Act harassment is defined, and it covers all relevant protected characteristics. So the Bill goes way beyond sexual harassment, as I think my noble friend Lord Strathcarron mentioned, and would concern religion and all the other protected characteristics in the Act. That seems to me to be an overreach and a misfiring of the Bill, which could be so much better targeted at the evil that it intends to address.
This brings us to the freedom of speech problems. Because the net has been cast so wide and covers all protected characteristics, the problems that my noble friend Lord Strathcarron instantiated in relation to his own experience as a modest publisher and a trustee of a museum immediately arise. In places with large numbers of persons having access, the policies that will need to be put in place will need to be very in-the-face of those who are likely to have access to such an event. I do not know what they will consist of, but—this is another important point—they all have to be reasonable steps.
The Fawcett Society brief says that employers will be required to take “reasonable steps”. That is not what the Bill says; it says, “all reasonable steps”. There is a world of difference in law, as I understand it, between “reasonable steps” and “all reasonable steps”. A small business, which might take the reasonable steps that it can see for itself but which fails to take other steps that larger businesses are taking—perhaps it is not even aware that those larger businesses are taking those steps—would be found to have failed to have taken all reasonable steps. At the very least, it should be required to do what the Fawcett Society thinks it will be doing and take “reasonable steps”. In my view, the word “all” needs to be removed.
I will now slightly repeat a point made by my noble friend Lord Strathcarron in coming to the question of the defence inserted by the Commons in new subsections (1C) and (1D). The meat is in new subsection (1C), where we find conditions which have to be met before that particular section can be prayed in aid by an employer. As drafted, all those conditions have to be met. I will not read them out because noble Lords have them in front of them and they are easily read, but each is quite onerous in itself, and cumulatively they will barely be available to employers when they come to an employment tribunal, should they do so. All this will do is result in more and more policies and more and more compliance culture as employers attempt to protect themselves from being sued, because their objective is to avoid ending up in an employment tribunal in the first place rather than to have a defence when they get there, which is completely understandable.
My final point is more of a query, because I am doing my very best on this. The noble Baroness, Lady Burt of Solihull, said that there would be a statutory code of conduct issued by the Equality and Human Rights Commission, which would show how the Bill would work. However, I cannot find it in the Bill; I cannot find a basis in the Bill for such a code of conduct. The notes produced by our own Library in the House of Lords say, as the noble Baroness said, that there will be a statutory code of conduct and that this is referred to in the Explanatory Notes. Look though I might in the Explanatory Notes, I cannot find that either. But then I note that the Library note puts this remark about a statutory code under its explication of Clause 2, so it possibly means that there will be a statutory code of conduct in relation to Clause 2. That would be absolutely fine—I have come back to Clause 2, as I said I would. I regard Clause 2 as uncontroversial, so supporting it with a statutory code of conduct seems to be a sensible step. But where is the evidence that there will be statutory code of conduct in relation to Clause 1, which is the one that is causing us so much difficulty?
Moreover, a point of considerable concern is that even if we find that there is to be such a statutory code of conduct—my noble friend the Minister might be able to give an assurance and explain what its statutory basis is—we are, in effect, outsourcing to the commission most of the substance of the operation of this clause that we are being asked to approve today. I think that is rather troublesome.
I do not say, as my noble friend did, that this piece of legislation has been rushed. I do not know whether it has been rushed, but it is ill thought out and misses the point. It does not do anything for the people it is trying to help, and it creates difficulties in other areas. My view is that it would be sensible if it were withdrawn and rethought; otherwise, it will have to be amended in Committee.
My Lords, I thank the noble Baroness, Lady Burt, for bringing this Private Member’s Bill to this place. I pay tribute to colleagues in the other place for their involvement, particularly in the debate that took place. I state from the outset our disappointment that the Bill is necessary at this moment in time. It reintroduces provisions made by the last Labour Government under the Equality Act 2010 that were removed by the coalition Government in 2013, who justified it by stating that the protections imposed an unnecessary burden on business. Surely, protecting people from harassment, especially in the workplace, should be seen never as a burden but as a responsibility. It is pleasing that, nine years later, there has been a change of heart by the Government, but concern remains about the length of time that has elapsed since 2019, when consultation on strengthening protections against harassment in the workplace was launched.
It is important to restate the scale of what we are facing. This needs to be listened to, heard and repeated on all occasions. Workplace sexual harassment is experienced by a minimum of 40% of women. Currently, the law on workplace sexual harassment is enforced only by individual women taking cases forward and there is no duty on employers to take preventive steps, but we know that this is not working. Some 79% of women do not report their experiences. The reforms in the Worker Protection (Amendment of Equality Act 2010) Bill ensure that more employees are protected and that more employers take responsible steps to prevent harassment.
At a minimum, as I said, 40% of women in the workforce experience sexual harassment over the course of their careers. Different women experience different rates and forms of harassment. Women and men of colour report even higher rates of sexual harassment. Seven in 10 disabled women and 68% of LGBTQ+ workers have experienced workplace harassment. Occupations where workers are exposed to male third parties—customers, clients or patients—also carry a higher risk for women who work in them. Some 56% of women working in the hospitality industry have experienced sexual harassment, as have 47% of those working in the services industries. In 2017 a survey showed that up to 18% of those who had experienced workplace sexual harassment said that the perpetrator was a client or customer.
Sexual harassment causes a variety of harms, including psychological, physical and economic. Morally and legally, employers should be required to take all reasonable steps to stop sexual harassment occurring. Disrespectful and abusive workplaces also have lower performance and productivity, and increased staff turnover.
What do we need to change? It is highlighted in the Bill. We have mentioned third-party harassment; we are trying to seek ways to make sure that staff members who face these problems have legal protection. The extent to which women who work in client-facing roles are unprotected by current laws was highlighted, as we heard, in the highly publicised Presidents Club scandal. The women who faced violations of their dignity in that case would not have had recourse to the law as it currently stands.
As I said, this was briefly on the statute book from 2010 to 2013 but was removed because the Government at the time believed that protection was present elsewhere in the law. However, following a subsequent court case, the Government now accept that there is a gap in the law. As I think we have heard, data from the House of Commons Library using the Government’s own survey indicates that 1.5 million people experience sexual harassment from a third party each year.
On the preventive duty, as I said, despite the protections in existing law, workplace sexual harassment is widespread. It is underreported for many reasons, including fear of repercussion, lack of awareness regarding rights, and fear of not being taken seriously. I am afraid to say that those fears are well founded. The EHRC found that in nearly half the cases where employees made a report, the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser.
Our current laws on sexual harassment mean that employers are not required to be proactive and take action to drive the necessary change. This also leaves managers not knowing how to respond appropriately. Only 45% of managers feel supported by their organisation when reports are made to them. Most importantly, it leaves women who have encountered traumatic experiences unsupported. We can and surely must do better.
The law needs to shift focus from redress to prevention. Currently, the question of whether employers have taken adequate steps to prevent harassment arises as a defence only if an incident of sexual harassment has already occurred. This of course means that employers are not required to take actions that prevent sexual harassment occurring. In 2018 the EHRC found that only a minority of employers had effective processes to prevent and address sexual harassment.
Over the last few years we have seen the Government make various commitments to take action. In 2021 the Government’s response to a 2019 consultation on workplace sexual harassment led them to make commitments to introduce a new preventive duty for employers, introduce more explicit protection from harassment by third parties, and consider extending time limits for Equality Act claims in the employment tribunal from three to six months. Do those commitments remain government policy? It was perplexing for us all, having had these commitments, to find no reference to them in the Queen’s Speech last year. We hope that the Bill is the mechanism through which these changes can be enacted on to the statute book.
So we are looking for answers to the issue of employer liability for third-party sexual harassment and the standalone preventive duty. As we heard earlier, at Third Reading in the other place, the Government amended the Bill so that employers will not be liable for workplace harassment, other than sexual harassment, where it arises as a result of a protected conversation. It is questionable whether this amendment is necessary. However, the implementation of a preventive duty and third-party liability is indeed a big step forward and consequently, we continue to support the Bill.
I have some questions for the Minister today. I support the noble Baroness, Lady Burt, in her request for information on how the amendment’s impact will be monitored and what remedial action will be taken if it does indeed interfere detrimentally with the spirit of the wider reforms. The Government have indicated their commitment to the reforms, but are they still committed to extending from three months to six months the time limit for bringing to the employment tribunal all claims made under the Equality Act? Many organisations support this extension, as the current three-month limit means that pregnant women have to bring a case in the first few months after birth, and sexual harassment victims when they are still incredibly traumatised.
It goes without saying that I look forward to the Minister’s response to the matters raised today. I particularly look forward to hearing that the Government are committed to supporting the Bill.
My Lords, I congratulate the noble Baroness, Lady Burt of Solihull, on leading this important debate and I compliment her on her excellent introduction to the Bill. Similarly, I pay tribute to the honourable Member for Bath, who introduced this Bill in the other place, where it enjoyed cross-party support and the full support of the Government. I also thank noble Lords who have contributed to today’s Second Reading debate. It is with great pleasure that I reaffirm the Government’s support for the Bill.
As the House is well aware, the harassment of workers remains all too common. The Government’s own experimental survey uncovered completely unacceptable levels of sexual harassment, and the recent review of the Metropolitan Police by the noble Baroness, Lady Casey, shows how harassment and discrimination can be baked into a system. The testimony and the data make it clear that mistreatment of women is a feature of the toxic culture that we have seen revealed in her report. I thank the noble Baroness, Lady Blake of Leeds, for giving us more information on this issue and bringing it into sharp relief today.
The noble Baroness, Lady Burt, set out the details of the Bill’s two main measures, and I want to take the opportunity to reiterate their importance. The third-party harassment protection and employer duty represent a significant strengthening of protections for those affected by harassment at work. What is more, they will not only raise awareness of the nature of harassment but motivate employers to prioritise the prevention of workplace harassment and, ultimately, improve workplace practices and culture.
I will touch on the Bill’s interaction with free speech, and the government amendment made on Report in the other place. Let me be clear: we have listened not just here to Members today but to those outside this House. We understand that there are real concerns about constraints on free speech and how our laws can have a chilling effect on the ability of people to speak their minds and voice their opinions.
The Bill is about the harassment of workers, and it is right, particularly in light of the review by the noble Baroness, Lady Casey, that employers take their responsibilities seriously and crack down on harassment and discrimination. Those who seek to harass people at work will not be tolerated.
However, freedom of speech is a vital pillar of our society, and I reassure all noble Lords that the Bill will not inhibit free speech. As well as casual conversations, no one wants to prevent rigorous discussion or intellectual debate, which are crucial to progress in this country. It is for these reasons that we amended Clause 1 to make clear that, while employers will be expected to take action against workplace harassment under the Bill, this should fall short of prohibiting the appropriate conversations of others. That was never the intention of the Bill, and it is now clear on the face of it. We have also specified the conditions which must all be met in order to trigger the amendment, to provide full clarity.
Some of the concerns expressed are about the “what if” questions. It is right that we test and rigorously examine the scope of the Bill, but legislators can go only so far in predicting and accounting for every scenario. The amendment we have put in place signals to employers where their ceiling of action should be, and the Government trust that they are best placed to assess how to implement the law according to the business within which they operate.
The implementation of the Bill will be supported by guidance from the Government and the Equality and Human Rights Commission. The Government have committed to support the EHRC in developing a statutory code of practice on workplace harassment, which will be published as the measures in the Bill come into force, one year after Royal Assent.
We have had assurances from the EHRC that it agrees that the measures in the Bill are a necessary and proportionate means of preventing unlawful harassment and are compatible with freedom of expression. The EHRC has also reassured us that its new statutory code of practice on workplace harassment will guide tribunals to consider the reasonable foreseeability of harassment occurring when determining employer liability.
The EHRC is rightly independent of government and, as such, it is up to it to determine the contents of the code, following consultation. The code will then be considered by the Secretary of State and, if approved, laid before Parliament. But, in the first instance, we will encourage the EHRC to ensure it clarifies the following points. Here I reassure the noble Lord, Lord Moylan, that it will include Clause 1 as well as Clause 2.
First, while employers will be expected to take action against workplace harassment under the Bill, this action should fall short of prohibiting the appropriate conversations of others. Secondly, employers will be expected to take only steps that are considered reasonable in their specific circumstances, meaning that the implementation of preventive measures should take into account known risk factors, as well as the size of the organisation and the resources of employers. Lastly, employers are not expected to take extreme or unreasonable steps to prevent the harassment of their employees, including the cancellation or refusal of bookings for lawful events, or hiring “banter bouncers” to actively police conversations in their establishments.
We will also encourage the EHRC to provide examples which are industry specific, such as guidance for venues that host speakers and entertainers, or workplaces which require frequent interaction with third parties.
What is more, the Government will also publish detailed guidance for employers about the kinds of steps they should be taking to prevent harassment in the workplace. This will improve employers’ ability to engage with their existing duties in this area, and help them to ensure that they have taken “all reasonable steps” to prevent harassment. I hope that that answers the points made by the noble Baronesses, Lady Blake and Lady Burt of Solihull. I can provide assurances today that the equality hub will monitor the impact of the Bill, including the amendment, to ensure it is accurately interpreted and implemented according to the spirit of these reforms. The Government will formally review the measures after five years—that was another issue that both noble Baronesses brought up.
Relatedly, I understand that concerns have also been raised about the requirement on employers to take “all reasonable steps” to prevent workplace harassment—this was brought up by a number of noble Lords. It is important to note that the concept of “all reasonable steps” has been in the Equality Act since its inception in the context of employers’ liability, and that it is well understood by employers and employment tribunals; this is nothing new. What is “reasonable” in any particular context is a question of fact for the tribunal. Factors including the work environment, the size of the organisation and known risk factors, as well as cost and practicality, are all relevant considerations.
What constitutes “all reasonable steps” is not currently defined in law and we do not intend to do so, as this would remove the flexibility to take a proportional approach based on the individual circumstances of the workplace. The alternative would be to set out a list of “all reasonable steps” by workplace context, which would mean creating an extremely complex system that might still not account for every workplace context and certainly would not be exhaustive. While it would therefore be undesirable to define “all reasonable steps”, the Bill as amended now makes clear to employers that, in certain cases, this should not include shutting down conversations or preventing the expression of opinion—in other words, setting a ceiling on what can be considered a “reasonable step” for an employer to take to avoid legal liability for workplace harassment. Both the EHRC’s code of practice and the Government’s guidance will provide further clarity for employers as to what “all reasonable steps” means for them, in addition to the range of existing guidance which is already available for employers in this area, including the EHRC’s current employment code of practice.
I now turn to a few other things—well, more than a few, I think—brought up by noble Lords. My noble friend Lord Hannan asked whether we had exhausted non-legislative options to tackle workplace harassment. There is already a wide range of guidance available on workplace harassment, such as the EHRC’s employment code of practice I just mentioned. However, as we have heard today, workplace harassment remains a persistent problem in this country, as the noble Baroness, Lady Burt, outlined. In particular, the Presidents Club scandal that has been mentioned more than once shows exactly where this country’s legislation fails to protect vulnerable workers: without the Bill, we know that workers have no protection from third-party harassment, other than the good will of their employer, and this is just not right.
The noble Earl, Lord Leicester, and the noble Lords, Lord Strathcarron and Lord Moylan, brought up the issue of free speech. I make it clear that the Government appreciate the concerns about free speech. It is a cornerstone of British values and it will only be strengthened, in my opinion, by the Bill. The Bill, though, concerns an employer’s liability only for workplace harassment, not for trivial upset. With all cases of harassment under the Equality Act 2010, courts and tribunals will be required to balance competing rights on the facts of that particular case, including the rights of freedom of expression and of academic freedom, against the right not to be offended, in deciding whether a person has been harassed.
My noble friend Lord Leicester brought up the issue of burden to businesses. We do not believe that compliance with the Bill needs to be onerous. I should be clear that there is no expectation that employers will be able to stop all harassment ever occurring in their organisation—that would be impossible. Instead, the Bill requires employers to take “all reasonable steps” to try to prevent the harassment happening in the first place.
My noble friends Lord Strathcarron and Lord Leicester asked for an example of how the amendment made to Clause 1 in the other place balances free speech and workplace harassment. It may be that the employment tribunal finds that harassment related to race has occurred where an employee overhears a conversation between two other employees concerning the treatment of immigrants. The employer can show that it has taken all reasonable steps to prevent the harassment by having in place an effective anti-harassment policy. The effect of the amendment is that the policy does not need to include the prohibition of conversations about controversial topics in order for an employer to avoid liability. It is about balance and, from the debate so far, I think noble Lords are misunderstanding the balance that the Government want to achieve in this.
My noble friend Lord Leicester brought up the issue of employers being held for employee hypersensitivity. I can understand the concerns that this Bill will lead to employers being held accountable for merely minor offensive comments made in their workplace, or facing excessive employment tribunal claims from hypersensitive employees. I strongly reassure noble Lords that we are not aware of any evidence that this is the case under the existing employer liability for employee-on-employee harassment, and there is no indication that this will occur as a result of this Bill.
My noble friend Lord Leicester also brought up the burden on the hospitality industry. The Government are clear that compliance with the Bill does not need to be onerous, as I have said. Under current legislation, employers are already expected to take all reasonable steps to prevent workplace harassment to avoid legal liability. Employers in the hospitality industry will be experienced in dealing with incidents of harassment carried out by customers and making those judgment calls in their workplace about the most appropriate steps to take to prevent the harassment and abuse of their employees.
My noble friends Lord Leicester and Lord Moylan brought up liability for third parties, saying that it should arise only in relation to sexual harassment. It has never been the case that liability for third-party harassment applied only in relation to sexual harassment. The third-party harassment provisions that were originally in the Equality Act applied to all forms of harassment. When considering the reinstatement of these provisions in their 2019 consultation, the Government made it clear that the options discussed would apply equally to all forms of harassment under the Equality Act 2010, not just sexual harassment. The fact that the general theme of the consultation was about sexual harassment will not detract from that.
My noble friend Lord Moylan asked about subcontractors, particularly in relation to the Presidents Club. I am sure that the Bill does not extend to the genuinely self-employed, as they do not fall within the definition of “employment” under the Act, but the Bill therefore covers subcontractors and agency workers. The people employed for the Presidents Club were probably in that group of people, but we would have to check.
Without referring specifically to the Presidents Club dinner, because none of us knows the actual facts of that, I ask in general terms whether, for a large banquet served by persons supplied by a silver service, the liable employer—given that they are not employed—would be the silver service company, the organisers of the banquet or indeed the owners of the premises, which might be an hotel, in which the banquet took place.
I will not answer my noble friend, as I do not have a degree in employment law, but I will ensure that I find the answer for him and put a copy in the Library.
My noble friend Lord Moylan also asked why there are so many conditions in the Commons amendment. I understand that a number of conditions all need to be met for the amendment introduced in the other place to be triggered.
I think that is everything. If I have not answered everyone’s questions, I will look in Hansard and make sure that I get a written answer to everyone. At the same time, if noble Lords still have concerns about the Bill and its contents, I would be more than happy to discuss it further with officials. I am happy for anyone to get in touch with me—we will put something in the diary.
I end by underscoring the cross-party support that the Bill enjoyed in the other place, where speakers from all walks of life appealed to this House to maintain that collaborative spirit. So it is with particular determination that I now commend the Bill to the House. The Government are proud to back it and wish it safe passage through its remaining stages.
Wow—this has been quite a discussion. I commend everyone who contributed on the Bill; it shows the degree of concern and even passion that people feel, not only on the part of workers who may be subject to harassment but on the very important issue of free speech, which I will come to in a second.
I thank again my honourable friend the Member for Bath for leading this important legislation up to this point. My gratitude goes to the members of the Equality Hub for their tireless work in developing the policy, and to the Fawcett Society for its advocacy, which ultimately got the Bill to where it is today. My gratitude also goes to the Minister, for reiterating the Government’s support for these new measures, which I know she agrees will bring a real positive change to the lives of many people, particularly the most vulnerable, across all industries.
I will just pick up on a couple of points. The noble Lord, Lord Hannan, was talking about a contract and how you can disagree, make the arrangements and make the changes according to two parties. The problem is that those two parties need to be equal. In my view, the problem here is that people who serve others are not necessarily in an equal situation. That is why it is so important. So many of the people who serve others and carry on these roles are in a lesser position, and they get abused; they get abused a lot. That is what we are seeking to change.
So, while no one would speak more highly of freedom of speech than myself, there is an element of reasonableness that needs to come down when we are discussing these matters. At the bottom of it, the people who are subject to harassment, some of them every day of their lives, do not deserve that. They serve you and me as well, and they deserve to have reasonable systems in place. Nobody is going to intervene and stop a conversation from happening because somebody might get offended. I think the definition of harassment and I take my life into my hands here—is a legal term and for sure I am very far from a legal expert. But we are talking about real distress caused to people who are in that customer-facing role. This is what we are seeking to do today: to at least enable employers to have procedures in place so that people can come to work feeling confident that, even if an incident happens, they will know what to do. They will know that their boss is going to be able to deal with the situation on their behalf. Employers need to think about that. It is a cultural issue that needs to be introduced in so many companies and businesses, for the good of the business but also for the good of the employee themselves.
So I hope that the Minister has managed to assuage some of noble Lords’ concerns. If I can help in any way, I would be more than happy to do so. I therefore invite noble Lords to support the Second Reading of this Bill.
(1 year, 1 month ago)
Lords ChamberMy Lords, I rise to oppose Clause 1 standing part of this Bill. It is the first time I have ever done anything like this, so I hope noble Lords will bear with me if I get anything wrong. My impression until now has been that when people oppose these clauses, they do so in a theatrical or perfunctory way. In other words, they declare their opposition as a prelude to them bellyaching about the various things they do not like in it, but in the expectation that the clause will eventually be included. But not on this occasion—as a result of constructive talks among interested parties on all sides, I rise in the expectation that Clause 1 will not be part of the final legislation.
In that spirit, I will take this opportunity to thank noble Lords on all sides for the generous and constructive way in which they have approached this, particularly the noble Baroness, Lady Burt of Solihull, colleagues on her Benches and on all Benches, and not least my noble friend Lady Scott of Bybrook, who with great delicacy and aplomb has had to find a solution that all sides can live with. I assure noble Lords on the Benches opposite that those of us who had problems with this Bill have moved considerably. I do not intend to rehearse all the arguments that we heard at Second Reading from my noble friends Lord Leicester, Lord Moylan, Lord Strathcarron, and others. Suffice to say that this is, in every sense, a solution which all sides have moved towards.
Speaking for myself, I would much rather have a world in which we had something closer to free contract, whereby if you want to employ me and I want to work for you, and we are both happy with the terms and conditions, the Government should not come between us and declare this or that clause of it to be illegal—but we are a long way away from that. So let me simply take this opportunity to thank all of those who have been involved. I look forward to hearing from noble Lords on all sides, particularly from the noble Baroness, Lady Burt, and from my noble friend the Minister. I beg to oppose this Clause.
My Lords, I echo all that my noble friend Lord Hannan said, and I am delighted that we have reached agreement and a way forward on the Bill. I will just add a few words on why I added my name to opposing Clause 1 standing part of the Bill. This is not simply a free speech issue. Clause 1 amends Section 40 of the Equality Act 2010. A new subsection (1B) defines a third party as
“a person other than … A, or …an employee of A’s”,
which noble Lords will recognise as a double possessive. It has both “of” and “A’s”. While a double possessive can occasionally be used to avoid ambiguity, there is no ambiguity in Clause 1. Fowler’s Modern English Usage, which is my Bible, has it listed as a sturdy but indefensible “freak of idiom”. My own view is that when we legislate, we should use the best possible version of the King’s English that we can find. I tried to table a specific amendment on this, but the usually very helpful Bill Office refused to let me do so, even though there is no direct prohibition in the Companion. I have no idea how one is supposed to correct grammatical errors or poor use of language other than by an amendment—I shall have to fight that another day.
The wording is also found in the Equality Act 2010, in Sections 39 and 40, so I can celebrate that by removing Clause 1 from this Bill, the Bill has been saved from repeating that poor use of the English language. But the 2010 Act remains intact with its double possessives, and I hope that my small intervention today might someday lead to its rectification.
My Lords, I declare my interests as set out in the register. I employ over 350 people and in 30 years have been taken to an employment tribunal only twice. On both occasions the tribunal found in my favour. I hope that noble Lords see that as an indication of good management and of taking a responsible and caring attitude towards the workforce. Of course, there are bad employers, but I suggest that most employers care for and nurture their workforce, understanding that a happy and well-motivated team is a business’s greatest asset and will ensure better outcomes for the company.
It is for that very general reason, and for the reasons announced at Second Reading by my noble friends Lord Hannan, Lord Strathcarron and Lord Moylan, which do not need repeating now, that I oppose Clause 1 standing part of this Bill. I sincerely believe that it should be removed. Furthermore, I understand that the noble Baroness, Lady Burt of Solihull, who is the Bill’s sponsor in your Lordships’ House, agrees that Clause 1 can be removed.
I thank the noble Baroness, and my noble friend the Minister, for our productive discussions on the Bill in recent weeks. While I hold reservations on the need for some of the specific measures and burdens that they place on employers, I trust that the amendments proposed today are a pragmatic way forward that allows the Bill to progress. The Bill, if amended, would retain the core purpose and send a clear signal that harassment is not acceptable in the workplace. It is right that employers take reasonable steps to prevent this, while balancing against the burdens on the business that the Bill, as originally drafted, could have imposed.
I have one point which I would be most grateful for clarification on, pertaining to Clause 2 and sexual harassment by a third party. If a company sends an employee away on a training course, having of course undertaken due diligence on said training provider, but while attending the course the employee is sexually harassed by someone from that company or another course attendee, in this example is the employee allowed to sue their employer—since the employer has very little control over what happens off their premises? I hope that my noble friend the Minister can clarify this.
During the progress of this Bill, I have learned a great deal about the consensual way in which this House undertakes its politics. Negotiations have led to sensible compromises, and I am particularly grateful to my noble friend Lady Noakes and the noble Baroness, Lady Burt of Solihull, for their friendly and helpful guidance. I look forward the words of the noble Baroness, Lady Burt. I also thank the Minister for her ongoing engagement and steadfast resolve in seeking a way forward that the House can agree on. I hope that she can confirm that the Government are open to the proposed amendments.
My Lords, I support my noble friend Lord Hannan in his opposition to Clause 1 standing part of this Bill and support the amendment to Clause 2. I apologise for not being present at Second Reading. Fatherly duties in visiting prospective universities intervened, which I could not put off.
We have today a much-improved Bill and a very sensible and pragmatic British compromise. I pay tribute to the flexibility and pragmatism of the noble Baroness, Lady Burt of Solihull, and thank my noble friends Lady Noakes and Lord Moylan for their work in this respect. I was very concerned at the outset of this Bill that we were seeing legislation by anecdote, which is never a good thing. However, we have reached a position which is mutually beneficial.
I was concerned particularly about Clause 1 because I thought that it had a pernicious and consequential chilling effect on free speech. Of course, we all deprecate incivility, discrimination and sexual and other harassment, but this was not the right vehicle for addressing those very significant societal issues.
I accept that the honourable Member for Bath sought in good faith to address some of those concerns through a very narrow exemption tabled in Committee or on Report in the other place but, to me, this was insufficient to safeguard free speech and guard against the very real dangers in the Bill of damaging and divisive litigation. Clause 1 as it now stands—if kept in the Bill—would have an impact that would surely lead to regulatory overreach and a new compliance culture in business and commerce, especially in the hospitality and leisure industries, at huge, avoidable cost to entrepreneurs and business owners. It would change the relationship between businesses and their customers and, I believe, would be illiberal and draconian in policing everyday interactions between staff, customers and business owners, as well as making vexatious complaints hugely more likely.
My Lords, I apologise for not having been in the House in March to speak in the Second Reading debate on this Private Member’s Bill. I am afraid I was out of London for the day, but I can see from the record that my noble friend Lady Blake did a great job from these Benches in giving our strong support to the noble Baroness, Lady Burt, and to the Bill.
I was keen to lend support to the Bill then, as I am now, partly because I am a veteran of the Equality Act 2010 and I participated in the debates about why we put these clauses into that piece of legislation. The noble Baroness, Lady Noakes, possibly did not like it at that time—2009 and 2010, when we were discussing it—either. I can remember the debates precisely about this clause; we were putting provisions on the statute book then. I am also a veteran of the debate in 2013, when I was fulfilling the same shadow role that I do now, when the coalition Government, in one of their deregulation splurges, justified taking out the imposed protections as an unnecessary burden on business.
At that time, of course, our argument was that protecting people from harassment, especially in the workplace, should be seen not as a burden but as a responsibility. It is pleasing that, nine years later, there has been a change of heart by the Government, which I welcome enormously, and we now have this Bill before us. We should pay tribute to the noble Baroness, Lady Burt, for bringing this Private Member’s Bill to us from the Commons. I pay tribute to all the parties that have been involved in this and given it their support both in the Commons and in this place. I also place on the record my thanks to the Minister for her work in seeking a way forward.
It is important to restate, momentarily, the scale of what we face. It needs to be listened to and heard on all occasions, because workplace harassment is experienced by a minimum of 40% of women. The noble Lords who have just spoken talked about freedom of speech and burdens on business, but that has to be balanced against the right to work and not to be harassed and insulted in a detrimental fashion.
I have two questions for the Minister. If these amendments are accepted—the noble Baroness, Lady Burt, accepted that they have to be to get the Bill through—it raises a couple of questions that need to be asked. If Clause 1 is removed, how do the Government propose to deal with, or reinstate, protections for workers against harassment by third parties like customers? I say this partly as a non-executive director of one of our hospitals, where we have to deal with the harassment of our employees—nurses, doctors and so on—and we have to work out how to support them, what is acceptable, what is not acceptable and what to do about it. It is a real issue; we are not talking just about people going into shops or restaurants, or some of the issues that led to this legislation coming forward. I would like the Minister to reflect on that question.
I also want to ask a question about the removal of the word “all”. As I recall from the discussions about this in other legislation, “all reasonable efforts” is an expression that is used in other places in the legislation and in this Bill. I have always thought that that word was there as much to protect employers and others as anything else—it is not superfluous. So can the Minister explain the implications of removing it from the Bill and what ramifications that might have for the rest of the legislation that covers this area?
I cannot promise the House that we will not return to this issue when we are in government. But I definitely give my support to the noble Baroness. I want to see the Bill, even as amended, on the statute book. We will give her every support.
My Lords, I thank the Minister and fellow Peers for our productive discussions on the Bill in recent weeks. I was honoured to sponsor it in our House, following the efforts of my colleague, the honourable Member for Bath, Wera Hobhouse, who introduced this important piece of legislation in the other place. Like me, she is deeply concerned about the scourge of workplace sexual harassment, which we know is a persistent and prevalent problem across the United Kingdom.
The Government Equalities Office’s own survey into sexual harassment in the workplace in 2020 found that nearly one-third of all employees surveyed—this is slightly different to the figure of the noble Baroness, Lady Thornton, but it is what I found—had experienced some form of sexual harassment in their workplace or work-related environment. That is one in three members of staff. The Bill sought to address this problem by protecting workers, specifically from workplace harassment. It would have amended the Equality Act 2010 to strengthen the legislative protections against workplace sexual harassment and harassment committed by third parties.
While I still firmly believe that the provisions of the Bill would have gone a long way towards tackling workplace harassment, I understand that several noble Lords have reservations about how it is drafted, specifically the entirety of Clause 1 and the word “all”, as in “all reasonable steps”, in Clause 2. Clause 1 would have instated protections for workers against harassment by third parties such as customers by introducing employer liability for such conduct. The Motion by the noble Lord, Lord Hannan, against Clause 1 standing part means that incidents of third party harassment will continue not to be covered by law, other than in extreme cases resulting in demonstrable personal injury or where a criminal offence has been committed. None of the existing legal routes will provide an effective alternative to the ability to bring harassment claims against third parties in the employment tribunal. For example, circumstances such as the reported harassment of hostesses by customers at the Presidents Club will still not be covered.
The amendment of the noble Baroness, Lady Noakes, in Clause 2 will narrow the concept of “all reasonable steps” to simply “reasonable steps”. I have listened carefully to her comments on this issue, and her understanding of it is somewhat different from mine. The Equality Act 2010 already contains a statutory defence that requires an employment tribunal assessment to say whether an employer took all reasonable steps to determine legal liability. The amendment will not change the Act’s existing statutory defence but will create a different test for the new duty on employers. That could be considered as setting a different and lower bar than “all reasonable steps”, and as such could be considered to be a watering down of provisions.
The amendments proposed today will change and ultimately attenuate the provisions of the Bill, but I am a firm believer in not allowing the perfect to become the enemy of the good. While it is disappointing that the Bill as sent to us will be changed by these amendments, I recognise the need for compromise in order to retain its core purpose, while allowing it to progress and reach the statute book. Noble Lords and I have reached an understanding whereby we can assure the passage of the preventative duty in respect of sexual harassment in exchange for accepting the amendments we are discussing today.
I am therefore happy that we have reached a consensus on a pragmatic way forward. As we in this Chamber all know, it is vital that we send a clear signal to prevent this behaviour. I am glad that, even in the Bill’s amended form, that remains the case.
I thank the Minister again for her ongoing engagement and steadfast resolve in seeking a way forward that the House Could agree on. I hope she will be able to confirm that the Government are also willing to accept the proposed amendments.
My Lords, I thank noble Lords for raising the risks to free speech and the potential impact on burdens for business that the Bill could bring by introducing employer liability for third-party harassment and requiring all reasonable steps.
I thank my noble friends and the noble Baroness, Lady Burt of Solihull, for the constructive discussions we have had on the Bill. The pragmatism shown by all to ensure that a version of the Bill can progress with support across the House, while respecting the strongly held views that noble Lords hold, is most welcome. I therefore assure my noble friends that we hear the level of concern that has been expressed about the reintroduction of third-party harassment. While the Government believe it important that workers be protected against this form of harassment, having heard the debate, I recognise the strongly held views of those who have spoken.
I will answer a few of the questions raised today by noble Lords. My noble friend Lord Leicester asked about sending staff on an external training course. I can assure him that employers are not currently liable for the harassment of their staff by third parties. Following the removal of Clause 1 from the Bill, that will continue to be the case, meaning that the employer in question would not be liable for harassment of their staff by such a trainer.
My Lords, I am very grateful to noble Lords on all sides who contributed to this part of the debate. I echo the words of my noble friend Lord Leicester—this is what we are here for: finding compromises, and that is what we have done on this issue. This compromise goes too far for some of us and not far enough for others, but all sides can at least live with it. It seems to me that that is precisely why this Chamber exists as a revising and scrutinising body.
I repeat my thanks to all those who have made the compromise work: my noble friends Lady Noakes, the Minister and Lord Moylan, who is not present, and the noble Baroness, Lady Burt of Solihull. Confident that the Minister will ensure that these changes happen on Report, and conscious that I am all that stands between your Lordships and the weekend, I will not detain the Committee further.
My Lords, the debate on Clause 1 stand part has already touched on the substance my amendment to Clause 2, which is to take out “all” from “all reasonable steps”. Let me reiterate that this is not intended to water down what is currently in the Equality Act, where employers are responsible for the acts of employees in relation to harassment unless they have taken “all” reasonable steps.
My reason for taking out the “all”, which is what my amendment does, in the new duty to prevent sexual harassment, which all parties around the House believe is an important part of this legislation, is that it now applies to third parties for the first time for some considerable time. The kinds of steps that you can take for employees are many and various. You have handbooks, training, town halls and all kinds of ordinary management mechanisms to allow you to ensure that you take reasonable steps.
When we come to third parties, the number of third parties is boundless. They are not just customers; you do not have to have a contractual relationship with them; they could even be passers-by. There is no bound to the number of third parties who could be brought within the scope of the new duty on employers. For that reason, “all reasonable steps” seems to imply an almost infinite number of steps that employers could take. We have to think about the impact on employers and, in particular, on small businesses which struggle to cope with things such as that. I submit that where other duties are placed on corporate bodies to do things, they are normally accompanied by a simple reasonableness test, not one embellished with something such as “all”. I believe this amendment is not malign. It tries to fit with the new duty and the expansion of the area it covers. I beg to move.
(11 months, 2 weeks ago)
Lords Chamber(11 months, 1 week ago)
Lords ChamberMy Lords, taking this Bill through your Lordships’ House has been somewhat of a challenge, but I am delighted to see the finishing post coming up—for this House anyway—until it wends its way back to the Commons and the final hurdle under the sure guidance of the honourable Lady, the Member for Bath. I am grateful to everyone who has worked so hard to bring the Bill to this stage, which has necessitated a great deal of pragmatism and compromise on all sides, not least by the Minister.
The Bill will not return to the Commons as it was when it first arrived in your Lordships’ House but, in essence, it will still protect workers from sexual harassment and it will impose a duty on employers to take reasonable steps to ensure that their employees are protected. Sexual harassment and assault in the workplace, particularly on women at all levels—even, we learn today, on female surgeons—are rife. The Bill will go some way towards rectifying this. We need a change of workplace culture, and this Bill will make a good start.
I thank all Members who have participated in the Bill, including the Minister, the officers of the Government Equalities Office and my legislative adviser, Mohamed-Ali Souidi. The EHRC has also given us excellent advice and will be charged with enforcing the new duty and helping and advising employers. On behalf of the EHRC, I ask the Minister to ensure that the necessary resources are made available to enable it to do this work. An Act is just a piece of paper until and unless it is properly enforced—in this case, that will be no small job. I look forward with great relief to now waving the Bill goodbye for its final stages in the other place.
My Lords, I express my sincere thanks to the noble Baroness, Lady Burt, for all the work she has put in, and thank the Minister for her support in the passage of this Bill through the House. The Bill represents an excellent step in the right direction. Clearly, we still have much to do. I also echo the sentiments and hope that the Government will move forward on this and will provide the necessary resources to make sure that all the provisions can be fully implemented.
My Lords, I sincerely thank the noble Baroness, Lady Burt of Solihull, for her work in taking this important Bill through the House. The noble Baroness has been patient and has shown great pragmatism—I think we have used that word a few times—in the progression of this Bill to help tackle workplace harassment. It is an honour to be here to confirm the Government’s ongoing support. We believe it is important that everyone feels safe and able to thrive in the workplace.
The noble Baroness asked me how the EHRC will enforce the new duty—that is important. The EHRC’s regulatory approach for any new duty will include producing a statutory code of practice based on its current technical guidance in the area and a mechanism for employees and employee representatives to be able to notify the EHRC of breaches and potential breaches of the preventative duty. It will also be able to use powers under the Equality Act 2006 to undertake strategic litigation, investigation and enforcement activity to target systematic non-compliance with the preventative duty, in accordance with the litigation and enforcement policy. On how that will be funded, I will write to the noble Baroness.
The Bill will help the Government to deliver their commitment to introduce the employer duty as part of the violence against women and girls strategy. The employer duty will send a strong signal to employers that they need to take action to prioritise prevention of sexual harassment and, ultimately, to improve workplace practices and culture. I thank all noble Lords and organisations who raised important issues in the debates and discussions throughout the Bill’s progression through the House. I believe this Bill now strikes the right balance between protecting free speech and tackling harassment. While there has been much debate and amendments have been made to the Bill, I think we can all agree that workers should feel safe and be free from sexual harassment in the workplace. Therefore, I hope the Bill can progress with the full support of the House today.
(10 months ago)
Commons ChamberI beg to move, That this House agrees with Lords amendment 1.
With this it will be convenient to discuss Lords amendment 2.
Workplace sexual harassment blights our society. Not a week goes by in which we do not hear about sexual misconduct in an organisation somewhere in the UK. Some 43% of women have experienced at least three incidents of sexual harassment at work. Most victims do not report it, for fear of not being believed or of damaging their working relationships and career prospects. Although sexual harassment is not confined to women, the vast majority of victims are women.
Harassment has a devastating impact on victims. Nearly half of women harassed at work said that it had harmed their mental health. One in four said that they avoided certain work situations, such as meetings, courses, locations and shifts, to avoid the perpetrator. More than one in four said that they wanted to leave their job but could not. Nearly one in five left their job as a result of this treatment.
Every person should be safe from sexual harassment, but every day new stories expose the extent of the problem in our workplaces. Just this year, there has been a torrent of misconduct allegations against prominent companies and organisations. There remain questions to be answered at the CBI, Odey Asset Management, the Royal National Lifeboat Institution, the fire services, the National Crime Agency and even our NHS.
The hon. Lady is making a very important speech about a powerful topic. As a former NHS employee for over 30 years, I am aware of some poor practice and lack of control over certain individuals who are sexual predators. They are only a small minority, but they have a massive impact on other NHS workers. Does she agree with me that we must protect our precious NHS staff and stamp out sexual harassment in all workplaces?
I could not agree more. The hon. Lady points out that a few individuals damage the reputation of a whole organisation and, especially when it comes to our NHS, that is devastating. The Bill should be good for organisations because it protects them as well.
Will the hon. Lady clarify—I am not sure from her remarks so far—whether she is in favour of Lords amendment 1, or is she speaking against it?
I will come to that later, but I will be supporting the Lords amendments.
There are many good employers who have implemented measures to safeguard their employees. However, far too many have not done enough to prevent and punish sexual harassment.
My hon. Friend is making a powerful speech about an issue that, as she says, has blighted our workplaces. Does she agree that part of the problem is that employers do not act when harassment begins at a low level? Putting workers down, talking over them and belittling them is just the start and it grows from there. Too often in the past, people have just been moved to a different department. Will her Bill put an end to that sort of atmosphere in the workplace?
Yes, it should be the beginning of a culture change to prevent sexual harassment happening before it gets to a point where it has such damaging effects.
The Equality and Human Rights Commission found that in nearly half of cases reported the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser. What one also finds again and again is that the employer does not really know what to do. When the Bill becomes law, there will be guidance for employers so that they know exactly what is expected of them. That should help organisations to face those problems.
I thank the hon. Lady for giving way, because she is making a very important speech. Protecting people, especially women, from harassment is hugely important. The Government have a fantastic track record of bringing in legislation to protect vulnerable people. I had strong concerns about the Bill in its unamended state, particularly on making employers responsible for third-party harassment. However, yesterday I contacted Denise Rossiter, the chief executive of Essex chambers of commerce, to ask the opinion of Essex businesses. The message I received back was clear: local Essex employers warmly welcome the amendments made to the Bill in the other place. I am delighted the Government have backed them. I welcome the amendments, in particular Lords amendment 1, and I support the Bill in its amended state.
I thank the hon. Lady for that intervention and I am pleased we have come to a point across both Houses where we can pass the Bill, as amended, into law. I will come to the amendments later in my speech and she will hear what I have to say.
The current laws on sexual harassment mean that employers often adopt individualised responses to institutional problems. That creates space for employers to minimise what is going on and leads to confusion about how to respond appropriately. Only 45% of managers felt supported by their organisation when reports were made to them. Ultimately, our current laws do not protect people who have encountered traumatic experiences. We can and must do better.
My Bill will strengthen the legislative protections against workplace sexual harassment. It will help to create safer working environments that are fit for the 21st century. It introduces a standalone duty for employers to take responsible steps to prevent sexual harassment within their organisations. That will make a real difference, as it will require employers to take proactive steps to address sexual harassment. It will help to instil a culture change, and it will ensure that people who abuse women and others can no longer rely on their workplaces turning a blind eye. Instead, they will be held accountable for their actions, making workplaces safer, more productive and more enjoyable for everyone.
I do not propose to divide the House today and I am happy that we have got to a place where the Bill has been effectively gutted by their lordships. I am happy with the cross-party consensus on where we have got to. It is right that we have removed the third-party liability, but there is something regrettable about the way this Bill has developed. There was a good moment when, in response to pressure from their lordships, the Government proposed to introduce a new defence against Equality Act harassment, whereby it should be possible to defend a suit on the grounds that there was no intention to injure the injured party, and merely overheard conversations and civil discussions, be they among colleagues or customers, should not be liable to legal action. That was a good step; it developed and improved our equalities law. In response to pressure from the other place, the Government have now withdrawn the third-party liability measure, which is a good thing. I agree with my hon. Friend the Member for Southend West (Anna Firth) that we are now in a position to abstain from opposing this Bill.
However, we need to debate our equalities framework in this country. Fundamentally, we need to stop bringing forward what I call performative legislation intended simply to outlaw behaviour we disapprove of, immoral conversations, bad manners, and action likely to cause hurt and distress. We cannot legislate against all of those actions and if we try—
I will be happy to give way to the hon. Lady in a moment. I recognise that we all intend to do the right thing by bringing forward this legislation. I recognise that the Government are trying to do the right thing, as is the hon. Member for Bath (Wera Hobhouse). However, we get into all sorts of trouble when Opposition Members get hold of this sort of law in Committee and when the courts are required to judge on what will necessarily be obscure language about the management of human relations and free speech. The precedent being set by this law is dangerous.
Does the hon. Gentleman agree that a lot of the damage that is done in a workplace, which leaves an individual, perhaps a young one in their first employment, feeling undermined, damaged, bullied and harassed, often comes from exactly the sort of casual conversation they overhear in a canteen or in the office? The intent of the Bill was not to be restrictive of people, but to protect young people in the workplace, on whom these things can have a huge impact.
The hon. Lady defines exactly the issue. She talks about the intent of the Bill being to protect people from feeling distressed, which I think is absolutely right—we should all intend that—but it is difficult for law to manage and protect people’s feelings. The consequence of writing that into black and white means that we then require courts to adjudicate on all sorts of very difficult emotional issues.
The hon. Lady talks about the intent behind the Bill. We all intend the right thing here. We are all in unity that we disapprove of harassment and incivility, but we disapprove of all sorts of things that we cannot and should not try to criminalise. The consequence of criminalising bad manners—even very bad manners—is fundamentally to curtail free speech and the freedom upon which all of our civility as a society depends.
I am glad that we are having this discussion in a very respectful way, because that is how it should work. I recognise that that discussion may not have been had enough and we need a little more time having it. Does the hon. Gentleman think that legislation guides better behaviour and that, for that reason, it is important that we pass certain laws? That is the intention of the Bill. As I say, I have accepted the Lords amendment, but does he agree that legislation guides better behaviour and that is what we should aim for?
This is an important discussion. The hon. Lady is saying that the law is a teacher—indeed, it is—and influences the culture. It is also true that the law needs to reflect the culture, so we modernise our legislative framework in response to public opinion and how things are. We now legalise things that were illegal in the past in response to the way culture evolves.
However, the law is a teacher in a bad way too. It can introduce negative effects into our culture and chill free speech. It can inhibit the sorts of conversation that are necessary for the development and progress of our society, which is a topic that will come up later in other legislation. There were significant attempts during the pandemic to effectively criminalise or inhibit free speech around the pandemic response, on exactly the same grounds that we might use in this debate, namely that it is important for public protection and the protection of the vulnerable that misinformation, disinformation and, in this context, harassment should be criminalised. That was wrong, and I really worry about the possible chilling effect of this legislation.
A narrow gap is left in this law to criminalise free speech. Many Members will raise the outrageous and unacceptable behaviour that many employees have to put up with in the workplace—I recognise that too. We absolutely need to insist that that does not happen, but that is a job for the culture and for employers. In a sense, it is a job for all of us to instil the right sort of moral conduct in our communities, but frankly it is impossible to write legislation in black and white that achieves the outcomes the hon. Lady wishes without also inhibiting free speech.
I will end with an observation about another piece of legislation that I understand is being contemplated for the King’s Speech: a conversion therapy ban. I am afraid that that is another instance where, under the noble and honourable impulse to stop outrageous and unacceptable practices going on, we are proposing a piece of performative legislation in response to a vocal and activist lobby group that will put into law an imprecise and fuzzy set of moral aspirations. Once Opposition Members get hold of it in Committee, on Third Reading and in the House of Lords, the scope will be expanded and then courts will be required to criminalise conversations between adults and their therapists, parents and children, which is exactly what happens in other countries where this well-intentioned legislation has been passed into law. The law is a teacher, but it is not an opportunity for moral grandstanding and virtue signalling. We have an obligation to put into black and white words that the courts clearly understand and that do not end up curtailing free speech.
It is a relief that we have this Bill back here today, given that it was reported earlier in the year that it was likely to be shelved, possibly because of the backlash we have just heard. The Bill has come back from the other place, albeit heavily amended, and it still represents a step in the right direction, albeit a very small one. The hon. Member for Bath (Wera Hobhouse) has done a sterling job in getting this Bill through the Parliamentary maze. She has been extremely gracious and generous in her comments today, given what is left in the Bill. I think it is a fine description to say that it has been narrowed in scope. Alternatively, it could be described, as the hon. Member for Devizes (Danny Kruger) has just done, as having had the guts ripped out of it. I know which description suits what has happened better.
I am glad that we are supporting this Bill. My hon. Friend talks about women being subject to sexual harassment, and we know that the problem is endemic, but it also seems that, increasingly, young men are reporting that they are falling foul of that—even in this place. It is really important that we recognise that men, particularly younger men, can be victims as well.
Yes, that is absolutely right. The Equality Act is framed in such a way that it protects everyone from harassment on the basis of their sex. I think that we now have a Bill that, after the amendments, to our regret will not protect workers from third-party harassment. The duty to take all reasonable steps has now been reduced or watered down to taking reasonable steps. We are disappointed that the Bill returns in a form that looks very different from what was originally passed by this House. It seems that the original good intentions of the Bill have—to use the terms of the hon. Member for Devizes—been “gutted”, and I am sorry to say that seems to have been with the support of the Government. Let us not forget that, when the Bill passed through the Commons originally, it did have support from the Government and it also had cross-party support, which is a rarity these days. Therefore, it is extremely disappointing that the democratically elected House seems to have given in to the unelected Lords, seemingly with the endorsement of the Government.
I have to say that the Government’s decision to support the Lords amendments that have taken the guts out of the Bill is frustrating, given that the Bill was enacting pledges that the Government had made.
Does the hon. Gentleman not recognise that this is the Bill of the hon. Member for Bath (Wera Hobhouse) and it is up to her to decide which amendments she does or does not accept? The Government have fully supported the hon. Lady. This is not a Government decision; it is part of the parliamentary process.
I thank the Minister for her comments. The Government have a majority, so if they wanted to keep the Bill in its original form they could have ensured that it passed. Let me quote what she said at Committee stage. She said that
“the Government committed to a package of new measures aimed at reducing incidences of workplace harassment. That includes the two legislative measures being brought forward in the Bill: explicit protections for employees from workplace harassment by third parties, such as customers and clients; and a duty on employers to take all reasonable steps to prevent their employees from experiencing sexual harassment.”––[Official Report, Worker Protection (Amendment of Equality Act 2010) Public Bill Committee, 23 November 2022; c. 10.]
It is true that I have accepted the Lords amendment. Indeed, it was ultimately me who proposed that we should go all the way in order to preserve one thing that I find incredibly important, which is the preventive duty on employers. Does the hon. Member not agree that this is an important step and for that reason it is right that I accept the Lords amendment?
I accept what the hon. Member says. We will certainly not oppose the Bill, but we do have to challenge the Minister on why she has changed her mind, given that, last year, she said that the measures in the Bill
“continue to form a key part of the Government’s national strategy for tackling violence against women and girls.”––[Official Report, Worker Protection (Amendment of Equality Act 2010) Public Bill Committee, 23 November 2022; c. 10.]
Why have the Government decided to change their mind on it? It seems to me that they have folded to pressure from their Back Benchers. Let us not forget that the Bill came about as a result of an extensive Government consultation, which received more than 4,000 responses.
It is not necessarily for me to come to the Government’s defence here, but I think the hon. Gentleman is tying himself up in knots with his argument. The amendment was passed in the House of Lords. He will have noticed, I am sure, that the Government do not have a majority in that House, so they cannot be held responsible for an amendment passed in it. If the Government had done as he asked by overturning the Lords amendment, the Bill would have fallen altogether, so I am not entirely sure what he is arguing for.
I am sure that the hon. Member is aware that we vote regularly on Lords amendments in this place, and that the Government use their majority to overturn them. The point that I am trying to make is this: where does this leave Government policy on the issue? The Fawcett Society found that 56% of women working in the hospitality sector, and 47% of those working in the services industry, have faced sexual harassment in the workplace. What will the Government do about that?
If the hon. Gentleman wished to press the matter to a vote as a point of principle, he could vote down the Lords amendment. I am sure that my hon. Friend the Member for Devizes (Danny Kruger) would be delighted if he did, because in doing so he would guarantee that the whole Bill fell. Is that really what he wants?
No, that is not what I want, which is why I have said that we will not oppose the amendment, but we are still entitled to express our disappointment about the capitulation. The Equality and Human Rights Commission’s 2018 report found
“a quarter of those reporting harassment saying the perpetrators were third parties”
and that third-party sexual harassment was dealt with poorly and considered
“a ‘normal’ part of the job”
by some employers. I do not think that is a situation that we should defend. Let us be clear: we would not have objected to the Bill if that had been in place—we certainly would have supported it—but we will support it as it stands because, as the hon. Member for Bath said, it is an important step in the right direction, albeit a much smaller step than originally intended.
The question remains: what is the Government’s plan to deal with third-party harassment? If they will not bring forward a legislative solution, what do they intend to do? If there were a repeat of the scenes at the Presidents Club tomorrow, what would be the consequences for the perpetrators? We need answers to those questions.
Despite the removal of the word “all” from the Bill, the duty to prevent sexual harassment is, as the hon. Member for Bath said, a new duty that represents a positive step forward. Establishing that preventive duty will shift the emphasis away from a reliance on individuals reporting harassment to employers and will encourage employers to take preventive steps. We are optimistic—we can be—and hope that the Bill will drive structural change by fundamentally shifting the responsibility from the individual to the institution, but what that will mean in reality and how much capacity the EHRC will have to investigate complaints remains to be seen. Its responsibility to create a statutory code of practice should mean that the focus will be more on working with employers. Does the Minister have any information on when she expects that statutory code of practice to be published, should the Bill be passed, and will it draw mainly from the non-statutory code of practice that has already been produced?
We believe that everyone should be able to go to work safe from sexual harassment, knowing that their employer has taken steps to create a safe working environment. That is why a Labour Government would go much further than the House has today.
I congratulate the hon. Member for Bath (Wera Hobhouse) on progressing this Bill, which tackles the important issue of sexual harassment in the workplace. I thank her for the pragmatism she has shown to ensure that the Bill can progress with agreement from across the House. It is slightly disappointing to see the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), take such a partisan approach, because the Bill has had cross-party support throughout all its stages.
It is often very difficult for private Members’ Bills to pass through this place, but the Government have fully supported the Bill, because it is such an important issue to tackle. We have especially made time for an additional sitting Friday, to ensure that the Bill passes. We remain committed to tackling sexual harassment in the workplace by introducing the employer duty, to strengthen protections in the Equality Act 2010.
While I note the concerns from my hon. Friends the Members for Southend West (Anna Firth) and for Devizes (Danny Kruger), I am very pleased that consensus has been reached here and in the other place, and I hope Members will agree that this important Bill should now be on the statute book. I would like to particularly thank my hon. Friend the Member for Devizes, who has some genuine concerns about the Bill that he has expressed today and at previous stages.
This is a difficult subject. While there may be differences in views and opinions, I am really pleased that the hon. Member for Bath has been able to progress the Bill through both Houses, because we need to make our workplaces better and safer. That is particularly true for women. We have heard recently about some of the experiences of female surgeons in the healthcare system. With my other hat on as a Health Minister, I am particularly pleased that this legislation will hopefully prevent some of those experiences in future.
I turn to the Lords amendments. Lords amendment 1 leaves out clause 1, to remove the proposed liability of employers for third-party harassment in the workplace. I am glad to hear that the amendment to remove this third-party harassment liability eases concerns that it could have had a chilling effect on free speech in the workplace. I am pleased that that has been addressed. There are some—I know the hon. Member for Bath is one of them—who are disappointed that the amendment has removed the third-party harassment liability, for very valid reasons, but this is about getting a compromise, so that we get the majority of the measures in the Bill through this place.
The Government believe it is important that workers are protected against this form of harassment, and good employers are already taking steps to ensure that their employees are protected from harassment by third parties, regardless of the legal position. However, to progress the Bill, we have had to be pragmatic, acknowledge the complexities at play and find a suitable balance. While we want to strengthen protections, we also do not wish to infringe on individuals’ rights to freedom of speech. Everyone has the right to their views and to debate them just as we are doing today, respecting others’ views in the process. The aim of the Bill is to tackle workplace harassment and not limit people’s freedoms. It is important to remember that, despite the removal of the third-party harassment provision, the Bill will still introduce a new duty on employers to take reasonable steps to prevent sexual harassment.
The Government’s priority is to ensure that the legislation works effectively. We have consistently consulted with a wide range of stakeholders and have listened to all their views. As my hon. Friend the Member for Southend West has consulted with her chamber of commerce, the Government have done so more widely. When concerns regarding the potential chilling effect on free speech were first raised as the Bill progressed through the Commons, the Government took on board those issues. It was feared that employers may take unreasonable or drastic measures to avoid liability for harassment of their staff, particularly by third parties, to the extent that they would feel obliged to shut down conversations in the workplace. While employers will be expected to take action against workplace harassment, we recognise that those actions should fall short of prohibiting conversations. Free speech is crucial to our way of life, and it is important that we found a way forward.
With over 40 amendments tabled to the Bill in the other place following its Second Reading on 24 March, even after the Government tabled their amendment, it was clear that there remained concerns that the Bill would still have a chilling effect on free speech. The Government took those amendments very seriously, as they were fatal to the Bill. In our engagement with stakeholders and peers, we heard the strong concern, particularly about the third-party harassment issues, so we were eager to find a balance and a way forward for the Bill to reach the statute book with cross-party support. Therefore, the Government have been pragmatic and alive to the issues raised, and consensus was reached with peers by removing all but two of their amendments. The shadow Minister, the hon. Member for Ellesmere Port and Neston, did not comment on the other amendments—over 38 of them—that we managed to get removed.
Private Members’ Bills are fragile things: they rely on cross-party support, but also support in both Houses. For that reason, it was very important to be pragmatic; otherwise, the whole Bill would have fallen. I am grateful for the Government’s patience and their support for the part of the Bill that we all can agree is so important, which is to create a preventive duty on employers. If the Bill passes today, it will be a good day, and I hope everybody will be able to support the amendments so that it can pass.
Lords amendment 1 agreed to.
Lords amendment 2 agreed to.
(9 months, 3 weeks ago)
Lords Chamber