Employment Rights Bill (Tenth sitting)

Chris Law Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[Jon Pearce (High Peak) (Lab)]

I promise to keep my comments brief. Clause 15 will amend section 40A of the Equality Act 2010 to provide that an employer must take all reasonable steps to prevent the sexual harassment of employees in the course of their employment.

The concept of “all reasonable steps” has been part of the Equality Act 2010 since its inception, as my hon. Friend the Member for Gloucester referred to. Section 109 of the Act provides a defence for the employer in respect of the discriminatory acts of the employee. It is about vicarious liability: in effect, if the employer can show that it has taken all reasonable steps, it will not be liable for the acts of the employee.

Exactly the same “all reasonable steps” test is being applied here. In my experience as an employment lawyer, employment tribunals are very well-versed in it and have a huge amount of experience with it. It would be a matter of fact for them to determine. It is important to understand that it will be, and always has been, a proportionate test that looks at the size and resources of the employer and the context of the employment situation.

There will inevitably be guidance from the Equality and Human Rights Commission on how employers should take all reasonable steps and what those steps might be, but it will be fact-specific. It may well include steps to mitigate, such as some form of risk assessment, policies, training or means by which an employee who is at risk of or has suffered third-party harassment can report it and action can be taken. All those things are fairly standard. They happen already as a result of the vicarious liability element of the Equality Act; the clause would just extend them to third parties.

All third-party harassment cases and issues arise from a case called Burton v. De Vere Hotels, in which Bernard Manning made racist comments to a waitress at a De Vere hotel and the waitress brought a claim. Both the original employment tribunal and the employment appeal tribunal held that it was harassment, but it was overturned on appeal because the right did not extend to protection from third-party harassment. That was the start of the process of trying to protect employees in such circumstances.

The employment tribunal and the employment appeal tribunal said that the employer knew what was likely to be in Bernard Manning’s act—we can all imagine what might be in Bernard Manning’s act—but did not take the necessary steps to protect the employee in the circumstances. These are exactly the scenarios that the shadow Minister raised, in which we would expect the employer to consider very carefully who was staffing the event, what policies should be in place and how any issues should be managed—including, for example, by warning Bernard Manning that he might not wish to make racist remarks to members of staff.

When we talk about risk assessments, we must remember that the biggest risk is that third-party harassment will continue. That is the most fundamental issue. I emphasise a point that the shadow Minister will find relevant: a 2023 Buckinghamshire healthcare NHS trust staff survey showed that there had been nearly 400 incidents of sexual harassment by third parties. Many of those incidents will have affected his constituents. It is vital that we make this legislation, because employee representatives at the trust have said that one thing that would help is a protection against third-party harassment. If we do not include this provision in the Bill, we will continue to leave his constituents exposed. I encourage the shadow Minister, who I genuinely believe cares about harassment, seriously to reconsider his opposition to the clause.

[Chris Law (Dundee Central) (SNP)]

It is a pleasure to see you in the Chair, Mr Stringer. I rise to speak in support of new clauses 39 and 40, which stand in the name of the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts).

The new clauses follow the publication of the Health and Safety at Work etc. Act 1974 (Amendment) Bill, a presentation Bill that the right hon. Member introduced in co-operation with the Suzy Lamplugh Trust and Rights of Women. They would address a critical gap in workplace safety by mandating proactive employer responsibilities to prevent all forms of violence and harassment, including gender-based violence.

The Health and Safety Executive does not currently accept domestic abuse within its remit. That might come as a surprise to some Members, but the reason is that domestic abuse and other forms of gender-based violence are not explicitly covered in the 1974 Act, even though the Domestic Abuse Act 2021 underlines the fact that employers owe their employees a duty of care that covers protection from domestic abuse.

Discrimination law inadequately protects workers from gender-based violence beyond sexual harassment, especially when such violence is not physical. The UK’s ratification in 2022 of the International Labour Organisation’s convention 190 means that the UK should take a comprehensive approach that addresses all forms and threats of gender-based violence in the workplace, psychological and emotional abuse, physical abuse and stalking, including with respect to people commuting to and from the workplace.

New clauses 39 and 40 would address those issues. They would go further than the Bill’s provisions on protection from harassment, because new clause 39 would introduce clear, actionable duties for employers to safeguard employees from gender-based harm through risk assessments, policy development and training. New clause 40 would mandate that the Health and Safety Executive create an enforceable framework that holds employers accountable and fosters inclusive, violence-free work environments for workers.

I understand that this may have been the Minister’s first opportunity to hear these points. I hope he will consider them, perhaps on Report.

[Alison Hume (Scarborough and Whitby) (Lab)]

Prior to entering this place, I spent 25 years working in the television production industry, both as a writer and as a producer. I co-own an independent production company—I refer the Committee to my declaration of interests—that has made children’s drama for the BBC, including the hit science fiction series “The Sparticle Mystery”, in which a cut-price British version of the large hadron collider at CERN sends all the adults into a parallel universe, a situation with which I have had some sympathy since arriving as a new Member. I mention that not to burnish my CV in the hope of a writing credit on the next James Bond film, but to make a point about clause 15.

The television industry is full of creative, inventive and hard-working people who wish to make the most of their talents and contribute to making the programmes with which the UK is a world leader and for which it is rightly admired. Unfortunately, the nature of a fast-moving and pressurised industry based on freelancers is that it is left open to abusive practices. Freelancers move between productions, often with no HR departments, with no formal recruitment processes and with a lack of the checks and balances that we all want to see in good workplaces. It is also an industry in which the talent is protected, which has led to a culture of exceptionalism in which appalling behaviour has been allowed to continue for years.

This is not just about sexual harassment and inappropriate behaviour. It is also about power, or rather the imbalance of it. When I was in the green room at the start of a production, someone came up to me—I was on my own with him—and put his arm around me. He said, “Make me a cup of coffee, love.” I said, “Make your own, and then start looking for a new job,” because I was the executive producer on the show. Unfortunately, far too many women endure sexually explicit comments, inappropriate touching and offensive jokes as part of their everyday experience at work.

A few years ago, a survey found that 39% of women working in film and television had been subjected to sexual harassment at work; freelancers, members of the LGBTQ+ community and disabled people are also most at risk. Women are too scared to speak out: they fear that if they do, they will simply not work in the industry again. It is hardly surprising that last year two thirds of women aged between 25 and 59 thought about leaving the industry.

I say to the shadow Minister that clauses 15 to 17 will mean that companies have to proactively take all reasonable steps to close the vacuum of responsibility that currently exists between senior and middle management. They will need to ensure that staff have the training to call out challenging behaviour, support colleagues and prevent future abuse rather than focusing solely on damage limitation, as sadly we have seen time and again.

--- Later in debate ---

[The Minister for Equalities (Dame Nia Griffith)]

We have had a full and thorough debate, and I thank my hon. Friends—in particular my learned hon. Friends the Members for High Peak and for Gloucester—for making many valuable arguments, and everybody for contributing their personal experiences.

I remind the Committee that clause 15 requires employers to take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take; at the same time, the requirement remains limited to steps that are “reasonable”. The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. That is a really important point, because the clause clarifies and makes things easier and more straightforward, rather than complicated and burdensome, which is the implication of some of the amendments.

I thank the hon. Member for Dundee Central for speaking to new clauses 39 and 40 tabled by the right hon. Member for Dwyfor Meirionnydd. I pay tribute to the right hon. Lady for her work on violence against women and on stalking, and indeed to the work of her predecessor on stalking. I reassure the hon. Gentleman and the right hon. Lady that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. There is already in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. If the hon. Gentleman so desires, I will ask the Health and Safety Executive to write to him on that point.

[Chris Law]

I thank the Minister. I would appreciate that.

[Dame Nia Griffith]

I will ensure that that happens.

The hon. Member for Mid Buckinghamshire questioned the necessity of this new legislation, so let me explain again. Often, harassment legislation, including the criminal law, allows an individual to take legal action against a perpetrator. However, that does not go far enough in tackling the wider issues and root causes. The burden of holding perpetrators to account and driving change is too great to be shouldered purely by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take all reasonable steps to prevent sexual harassment.

I think the hon. Member is also concerned that the clauses that we are discussing risk being unworkable or burdensome. It is important to remember that they simply require employers to do what is reasonable for their specific circumstances. That means that employers will not be penalised for failing to take unworkable or impractical steps. The clauses will not require employers to foresee the wholly unforeseeable or to police all customers’ private conversations. On one hand, the hon. Member acknowledges that good businesses already accept the need to take all reasonable steps to prevent sexual harassment, but on the other, he wants to make exceptions for a large number of businesses.