Worker Protection (Amendment of Equality Act 2010) Bill

Danny Kruger Excerpts

Friday 3rd February 2023 Commons Chamber

[Wera Hobhouse (Bath) (LD)]

This Bill cannot be allowed to fall. It will make a huge difference to the lives of many people in the workplace and will help to provide a cultural shift in attitudes towards appropriate behaviours at work. The Government’s amendment will not impinge on the protections from sexual harassment in the Bill, which will be so important to many women across the country—although of course sexual harassment is not faced only by women. I have also been assured that the amendment should not stop employers prohibiting targeted, indecent or grossly offensive conversations in the workplace, meaning employees will still be protected from third-party workplace harassment.

After taking advice from the Fawcett Society and the Equality and Human Rights Commission, I have concluded that I should get behind the Government’s amendments, because the overall aims of the Bill are so important and it is important that it is put into statute. As a Liberal, of course I do not want important political conversation to be shut down in the workplace; people should be free to express an opinion. However, we should be careful to ensure that expressing an opinion does not become a defence for harassment.

I was slightly disappointed that the Government tabled their amendments after Committee had concluded. That led to an enormous rush, and it was quite difficult to consult with everybody, but as I said, I have been assured and have concluded that it is the right way to progress with the Bill, and I support the amendment.

I urge the Government to listen to the concerns of the EHRC, which argues that the amendments could be more targeted and limited, and the National Alliance of Women’s Organisations, which worries that the amendments risk diluting these changes, which seek to make workplaces safer, fairer and more respectful not just for women but for everybody. I hope the Government will commit to ensuring the Bill’s smooth passage into law, working with all stakeholders who have voiced their concerns.

[Danny Kruger (Devizes) (Con)]

I rise to support the Bill and the amendments that the Government have tabled, with the support of the hon. Member for Bath (Wera Hobhouse). I recognise that, despite the Equality Act, we have a significant problem in our culture and our society: too many people are the victim of unacceptable and outrageous harassment, intimidation and abuse in their workplace, particularly sexual harassment. I recognise the powerful points that the hon. Member for Bath made. The problem arises largely because this harassment frequently goes unreported because it is ignored by employers.

We have a significant problem in the culture, so the question arises, what can the law do about it? I want to speak in support of the amendments that the Government have tabled but also raise some concerns about the drift in legislation that we have embarked on. I very much recognise the responsibility that employers have to set the atmosphere and to create the culture.

[Mr Deputy Speaker (Sir Roger Gale)]

Order. At the start of the debate, I indicated very clearly the difference between Report and Third Reading. If the hon. Gentleman wishes to speak now, he must speak to the amendments. There will be an opportunity to go broader on Third Reading.

[Danny Kruger]

Thank you, Mr Deputy Speaker. I am speaking to the amendments, so I will be more specific.

Clause 1 is very helpful, and the amendments support it. I recognise that clause 1 as drafted would have protected Kathleen Stock, the professor at the University of Sussex who was the victim of harassment and intimidation at her university, when the university did not step in to support her. The problem is that it would have also prevented Kathleen Stock from speaking at other universities, because those universities would have insisted that their employees were the victim of harassment or abuse by her presence. We have a real problem with universities gold-plating the Equality Act and other legislation, and their excessive invocation of the Equality Act should not be happening. The problem I have with the clause as drafted is that it would not only have justified but could have necessitated the sort of censorship that we need to be concerned about.

I recognise that the Bill presents a particular challenge to public-facing employers, because it seeks to prevent intimidation on the part of not only fellow employees but members of the public. I am concerned about the concept of “reasonable steps” that employers are expected to take. I am going to make a few absurd suggestions, and I would be interested to hear the Minister’s response to whether the amendments will indeed prevent such scenarios.

Will pubs be expected to put up signs saying, “No banter allowed” in order to take reasonable steps to prevent harassment? The three-strikes rule in the 2010 Act that was repealed in 2013 ensured that what was prohibited was a course of conduct that was harassing. Now employers are expected to head off at the pass any possibility of harassment, because they are liable at the first instance of harassment. Will pubs be required to proactively prevent anything that might constitute harassment? The fact is that a censorious spirit has entered the soul of organisations that hold power and responsibility in our country. We have seen a somewhat absurd instance of that this week with the Welsh rugby stadium banning the singing of the song “Delilah” and the local police chief tweeting his support, as if it is his job to determine what fans sing.

--- Later in debate ---

[Wera Hobhouse]

Perhaps I could advise the hon. Gentleman that the EHRC will give guidance to employers to help them get through these issues. We are waiting for the guidance, which will be published shortly. I advise him to look at that guidance.

[Danny Kruger]

I thank the hon. Member for that advice. I will look forward to that guidance, as I have great faith in that commission under its present chair to make sensible guidance.

For the sake of clarity, is it the case that the list of criteria—the eligibility for the law to be triggered—are individual criteria, so that if any of these criteria are not met, then the law does not apply? Or is it that every single one of them must be met for an employer to be exempt from the operations of the Act? I fear that if they are all required to be met, that is a very high bar for employers to get over, and I would rather it was just any of them being met.

I end by expressing my concern about how, increasingly, the spirit of our law is simply declaratory. We decide that something is bad in our society and we pass a law saying that it is bad and that it should not happen, and we expect that to work. What we need to consider in drafting and passing legislation is the actual effect of the law on the people who will be responsible for enforcing it, given the culture and the effect of the culture on the law. The law is a teacher, and we must be aware of the attitudes, the spirits, the fears and the politics, including the increasingly transgressive politics, of people with power our country’s public life and about how they will use the laws that we are passing. In future times, what will be done with laws such as this? I would be grateful to the Minister if she could reassure me on those points.

[Maria Caulfield]

I thank my hon. Friend the Member for Devizes (Danny Kruger) for raising those points. The amendments make the case that any harassment must be directed to the employee; it cannot simply be third-party conversations that are overheard. To his specific point, all the conditions must be met for the amendment to be triggered. I recognise that he says that that is a high bar, but that is the case.

Turning to my hon. Friend’s examples, such as whether banter will be banned, I gently say that if it is directed at the employee, that can be sexual harassment. One person’s banter is another person’s harassment, and we need to be mindful of that. The other example that he gave was of a footballer: if the crowd are singing a song or directing a chant, that can be targeted harassment. We have multiple examples of footballers being targeted either because of their race or their colour. That is not acceptable and football clubs take action on that now.

As the hon. Member for Bath (Wera Hobhouse) said, guidance will be issued. We understand that it will be difficult for employers and we know that they need clarity. That is why we have tabled these amendments today. Third-party conversations that are not directed at an employee will be exempt, as is the case if all the conditions in the amendment are met. Direct harassment of an employee, whether that is banter or a song at a football match, is still harassment. That is why we need the Bill.

Amendment 1 agreed to.

Amendments made: 2, page 1, line 2, leave out “of the Equality Act 2010”.

This amendment is consequential on Amendments 3 and 4.

Amendment 3 , page 1, line 11, at end insert—

“(1C) Subsection (1D) applies if and so far as—

(a) a third party harasses B in the course of B’s employment,

(b) the harassment falls within section 26(1) (unwanted conduct related to a relevant protected characteristic) and not within section 26(2) or (3) (unwanted conduct of a sexual nature etc),

(c) the conduct constituting the harassment involves a conversation in which B is not a participant, or a speech which is not aimed specifically at B,

(d) the conversation or speech involves the expression of an opinion on a political, moral, religious or social matter,

(e) the opinion expressed is not indecent or grossly offensive, and

(f) the expression of the opinion does not have the purpose of violating B’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(1D) For the purposes of subsection (1A)(b), A is not to be treated as having failed to take all reasonable steps to prevent the harassment solely because A did not seek to prevent the expression of the opinion.”

This amendment makes provision about when an employer can be held liable for the harassment of their employee by a third party. Its effect is that, where relevant conditions are met, employers will not be expected to prevent the expression of opinions in order to avoid liability.

Amendment 4, page 1, line 11, at end insert—

“(2) In section 109 (liability of employers and principals), after subsection (4) insert—

‘(4A) Subsection (4B) applies if and so far as—

(a) A harasses another employee (C) in the course of C’s employment,

(b) the harassment falls within section 26(1) (unwanted conduct related to a relevant protected characteristic) and not within section 26(2) or (3) (unwanted conduct of a sexual nature etc),

(c) the conduct constituting the harassment involves a conversation in which C is not a participant, or a speech which is not aimed specifically at C,

(d) the conversation or speech involves the expression of an opinion on a political, moral, religious or social matter,

(e) the opinion expressed is not indecent or grossly offensive, and

(f) the expression of the opinion does not have the purpose of violating C’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for C.

(4B) For the purposes of the defence in subsection (4), B is not to be treated as having failed to take all reasonable steps to prevent the harassment solely because B did not seek to prevent the expression of the opinion.’”—(Wera Hobhouse.)

This amendment makes provision about when an employer can be held liable for the harassment of their employee by another employee. Its effect is that, where relevant conditions are met, employers will not be expected to prevent the expression of opinions in order to avoid liability.

Third Reading

[Wera Hobhouse]

I beg to move, That the Bill be now read the Third time.

The Bill has a simple aim: to create respectful workplaces free from harassment where employees feel valued and supported. Today, we can move a step closer to that by creating an employer’s responsibility to clamp down on harassment. I start by thanking the Fawcett Society and the Government Equalities Office officials who have supported me throughout the Bill’s progression. My thanks go also to the Women and Equalities Committee, whose 2018 report into workplace harassment set the wheels in motion for the Bill. There has been vital cross-party support to ensure this important legislation progresses. I hope that spirit of consensus continues today. It will send a clear signal from us here in Parliament that workplace harassment must end.

The Bill focuses on strengthening protections against workplace sexual harassment and introduces protections against more general harassment by third party actors. Workplace sexual harassment is widespread and under-reported. It continues to be a stain on our society. Half of all British women and a fifth of men have been sexually harassed at work or place of study. A TUC survey suggested 79% of women did not report their experience of sexual harassment. Too many people suffer in silence partly because they feel unable to report it. Reporting can have severe career and reputational implications. Employers must shoulder some responsibility for that. The Equality and Human Rights Commission found that in nearly half of cases where employees made a report, the employer did nothing, minimised the incident, or placed the responsibility on the employee to avoid the harasser.

The impact of harassment in the workplace has devastating consequences on health, morale, and, last but not least, performance. Current harassment laws mean employers often adopt individualised responses to institutional problems. This allows employers to minimise harassment, causing confusion around appropriate responses. For things to improve, we must shift the focus from redress to prevention. The Equality and Human Rights Commission found in 2018 that a minority of employers had effective processes in place to prevent and address sexual harassment. Employers should have a moral and legal obligation to take all reasonable steps to stop sexual harassment from happening. The Bill will force them to act.

Clause 2 will impose a new duty on employers to take all reasonable steps to prevent their employees from experiencing workplace sexual harassment. It will not require employers to do anything substantially more than what they already should be doing to avoid legal liability for harassment carried out by their employees. However, if employers have failed to take those actions, they could face further enforcement action through an uplift to the total compensation awarded at an employment tribunal, or through the EHRC’s strategic enforcement. That should encourage employers to improve their workplace practices and culture to discourage sexual harassment.

The new duty will operate through dual enforcement. First, the EHRC may take enforcement action for a breach or suspected breach of the duty under its strategic enforcement policy. That would mean employees would be able to inform the EHRC of any concerns without necessarily having to take forward legal action against their employers themselves. Secondly, 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 of the duty is found, tribunal judges will have the power to order an uplift of up to 25% of the compensation.

The Bill will also introduce explicit protections against third-party harassment in the workplace—this is where the amendments are most relevant. 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 reasonable steps to prevent such harassment. These protections will apply to all acts of third-party harassment in the workplace, not just sexual harassment. Once again, there will be a system of dual enforcement.

A claim of third-party harassment could be brought after a single incident of harassment. That 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. However, liability can arise only if an employer has failed to take all reasonable steps to prevent harassment. The Government Equalities Office will support the EHRC in creating a statutory code of practice on sexual harassment and harassment in the workplace, to support employers to implement the changes that will come into force 12 months after Royal Assent.

There is plenty of opportunity for employers to make themselves well informed of the changes and ensure that they can implement them. There will be a consultation as well. There is plenty of time to further consider people’s concerns on all sides. I encourage all Members to make themselves very knowledgeable about the changes and the guidance that will be provided shortly.

[Danny Kruger]

I thank the hon. Lady for that point. It is important that we trust the organisation that will design the regulations. Does that not mean, if we are essentially outsourcing the definitions that will be implemented under this law, that a future regime at the Equality and Human Rights Commission may come up with different guidance that will be much stricter than what we are passing today?

[Wera Hobhouse]

Perhaps we should trust ourselves a little more. This Bill is not about heavy penalties on people but about creating workplaces where everybody feels valued. I am sure that everybody across this House will support that. That is the aim of the Bill, not to create huge penalties for employers now.

We all need to acknowledge where harassment takes place. As we heard from the Minister, we all need sometimes to recognise that someone’s banter is another person’s harassment. To create and develop sensitivity to how people feel about things, and to have conversations in the workplace where we can be open to talk about these things, will lead to the workplace that I would like to see in future. I have some confidence that in the end, we will all be supportive of that. I hope that the hon. Gentleman’s concerns will be addressed; he will see the guidance that is being created and that it is about all reasonable steps being taken. It is, in many ways, about common sense—what is a reasonable step and what is an unreasonable step. I am sure that we can all move forward together.

There is plenty of time to look at the code of practice. I encourage everyone to make themselves knowledgeable. It will be based on the technical guidance that the Equality and Human Rights Commission published 2020, and will be introduced as the new legislation comes into force. The EHRC will have a duty to consult on the code of practice in advance. In the meantime, the Government’s Equalities Office has produced guidance, which they will publish in due course.

The Government tabled amendment 3 to clause 1, which means that, where harassment relates to a protected characteristic, employers will not be expected to prevent the expression of an opinion to avoid liability, where certain conditions are met. The conditions are where the harassment involves a conversation in which the claimant is not a participant, or a speech that is not aimed specifically at them; where the conversation or speech contains the expression of an opinion on a political, moral, religious or social matter; where the opinion expressed is not indecent or grossly offensive; and where the harassment is not intentional. The amendment will not apply in cases of sexual harassment.

Workplace harassment should be seen as an epidemic, and it is time that we treat it in that way. During flu season, employers do not wait for employees to get sick: they proactively invest in and implement evidence-based prevention measures to keep workplaces healthy and productive. This Bill encourages the same focus on prevention to tackle harassment. I therefore call on the House to support my Bill, which will enshrine in law historic measures to protect employees against workplace harassment.