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.