Worker Protection (Amendment of Equality Act 2010) Bill

Baroness Burt of Solihull Excerpts

2nd reading
Friday 24th March 2023 Lords Chamber

Moved by

[Baroness Burt of Solihull]

That the Bill be now read a second time.

[Baroness Burt of Solihull (LD)]

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.

--- Later in debate ---

[Baroness Burt of Solihull (LD)]

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.

Bill read a second time and committed to a Committee of the Whole House.

Worker Protection (Amendment of Equality Act 2010) Bill

Baroness Burt of Solihull Excerpts

Committee stage
Friday 14th July 2023 Lords Chamber

[Baroness Thornton (Lab)]

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.

[Baroness Burt of Solihull (LD)]

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.

[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

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.

Worker Protection (Amendment of Equality Act 2010) Bill

Baroness Burt of Solihull Excerpts

3rd reading
Tuesday 12th September 2023 Lords Chamber

Moved by

[Baroness Burt of Solihull]

That the Bill do now pass.

[Baroness Burt of Solihull (LD)]

My 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.

[Baroness Blake of Leeds (Lab)]

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.