Worker Protection (Amendment of Equality Act 2010) Bill

Baroness Scott of Bybrook Excerpts

2nd reading
Friday 24th March 2023 Lords Chamber

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

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.

[Lord Moylan (Con)]

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.

[Baroness Scott of Bybrook (Con)]

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.