Worker Protection (Amendment of Equality Act 2010) Bill

David Johnston Excerpts

Committee stage
Wednesday 23rd November 2022 Public Bill Committees

[Wera Hobhouse (Bath) (LD)]

Thank you, Mr Paisley. Before I go through the details of the Bill, I thank the Minister and Committee members for joining me to examine the Bill. I also thank the Government’s Equalities Office and the Fawcett Society for their excellent work and support over recent months. It is wonderful to see such cross-party co-operation to ensure that this important legislation makes progress.

Workplace sexual harassment is a blight on our society. It remains widespread and vastly under-reported. Half of British women and a fifth of men have been sexually harassed at work or a place of study. Too many people have been left to suffer for too long. The question of whether employers have taken adequate steps to prevent sexual harassment arises only as a defence if an incident of sexual harassment has already occurred. Employers are therefore not required to take actions to prevent sexual harassment. That leaves individuals with the burden of challenging it.

The Bill, which passed its Second Reading last month, introduces two new measures to strengthen protections for employees against harassment. The first is the introduction of explicit protections for employees from workplace harassment by third parties, such as customers and clients. The second is the introduction of a duty on employers to take all reasonable steps to prevent their employees from experiencing sexual harassment.

I now turn to the Bill’s substance, covering each of the six clauses. Clause 1 creates employers’ liability for harassment of their employees by third parties. In particular, the clause amends section 40 of the Equality Act 2010, which already makes it unlawful for an employer to harass their employees or their job applicants, by inserting proposed new subsections 1A and 1B.

Proposed new subsection 1A will make an employer liable if they fail to take all reasonable steps to prevent the harassment of their staff from third parties in the course of their employment. That includes all types of harassment under the Equality Act, including racial harassment and harassment in relation to sexual orientation, as well as sexual harassment. Proposed new subsection 1B defines a third party as someone other than the employer or a fellow employee. That would include customers or clients. In practice, therefore, employers will now be legally required to consider the harassment risks that third parties may pose in their workplaces, and to take steps to protect their staff.

No other conditions are attached to the third-party protection, and an employee will be able to bring a claim for third-party harassment after a single incident of harassment. The Bill therefore does not replicate the repealed “three strikes” formulation in the pre-2013 version of section 40 of the Equality Act, under which employers needed to know of two previous incidents of third-party harassment before they could be considered liable. The rationale is that there should be no distinction between being harassed by a colleague or a client when it comes to the legal liability of employers and to employees seeking recourse. The measure will also provide better clarity for both employers and employees, and avoid the unnecessary complexity arising from the “three strikes” formulation. The third-party harassment protection will be enforceable in two ways: first, by individuals bringing claims to the employment tribunal; and secondly, by the Equality and Human Rights Commission using its existing powers.

In cases where individuals are willing and able to bring claims to the employment tribunal, claims of third-party harassment will be considered in the usual way for work-related Equality Act claims. Compensation in such cases will be decided by the employment tribunal in the same way as existing Equality Act claims, which involve considering a number of factors, including financial loss and “injury to feelings”.

Clause 2 inserts new section 40A into the Equality Act to create a new duty on employers to take all reasonable steps to prevent sexual harassment of their employees. The phrase “all reasonable steps” is well understood as it is a statutory defence in section 109 of the Equality Act. Employers currently can show that they have taken all reasonable steps to prevent the harassment or discrimination of their employees when defending such claims and will therefore be familiar with the concept. The provision is to make sure that employers will quickly get behind this legislation.

The Bill will not define “all reasonable steps” because what could be considered reasonable will vary between employers, taking into account factors such as their size, sector and specific circumstances. Tribunals are adept at applying the concept, which ensures that employers can take a proportionate approach appropriate for their circumstances. All that is to ensure that everyone—employees and employers—can get behind this legislation because it is about a culture change in our society.

[David Johnston (Wantage) (Con)]

I congratulate the hon. Lady on getting her Bill to this stage.

On the point about culture change, I should say that a few weeks ago a 16-year-old in my constituency came to see me about negative behaviour from boys and men, including rape jokes that the adults around her and her friends just dismissed as “boys will be boys”. That is the sort of thing that happens in the workplace, too. Does the hon. Lady agree that the earlier we educate boys about how to treat girls, the less likely they are to become men who mistreat women in the workplace?

[Wera Hobhouse]

I thank the hon. Gentleman for that intervention. Absolutely—this legislation should be a step in the right direction towards culture change. That cannot start too early; obviously, by the time someone is in the workplace they might already have started to take the wrong attitudes. Whenever we talk about sexual harassment, we always mention the importance of education and of starting early and understanding relationships and consents. That is the most important thing. We do not want legislation that creates a lot of criminals and offenders; it should encourage people to do the right thing and to have the right behaviour in all places in society, including the workplace.

The question of whether an action is reasonable is also familiar in domestic civil law: more specifically, in the Equality Act—for example, the duty on employers and service providers to make “reasonable adjustments” for disabled people. To help employers understand what is expected of them, the Government will be supporting the Equality and Human Rights Commission to develop a statutory code of practice on workplace harassment. A breach of the new duty will be enforceable in two ways. First, it will constitute an unlawful act under the Equality Act 2006, and therefore be enforceable by the Equality and Human Rights Commission under its existing powers. There are already good and reasonable laws in place, but sometimes people may not know that they exist. Employees in particular may not know that they have recourse to them. This legislation also reinforces our campaign to make sure that everyone knows their rights.

The EHRC may undertake strategic litigation, investigation and enforcement activity for any suspected breach of the new employer duty, regardless of whether an individual has submitted a legal claim to the employment tribunal. That is an important change, because previously that was not possible. The EHRC can act on its own behalf. That enforcement route removes the onus from the individual, who may not wish to bring legal action against their employer, and enables an employer’s systemic non-compliance with the duty to be addressed by other means. Again, that is about empowering our workforce to understand their rights and to ensure that the onus is not always on the individual. Secondly, the duty is enforceable by individuals bringing claims to an employment tribunal in certain circumstances. Clauses 3 and 4 set out the details of the duty’s enforcement.

Clause 3 amends section 120 of the Equality Act, which sets out areas where employment tribunals have jurisdiction to determine when a complaint is made. The clause provides that a claim for a breach of the duty cannot be brought as a stand-alone claim to an employment tribunal. That means that tribunals cannot consider individual claims for a breach of the employer duty, other than in cases where a sexual harassment claim has been upheld. The rationale is that to allow otherwise would risk broadening and complicating the duty’s scope beyond the intentions of the policy. For example, it might enable someone to bring a claim that simply challenges a company’s perceived inadequate policy or training. This risks creating uncertainties for employers and undermining the policy aims.

Clause 4 concerns the compensation awarded by an employment tribunal for a breach of the new employer duty. It inserts new section 124A into the Equality Act. It provides a new remedy for breaches of the employer duty in cases where the tribunal has upheld a claim involving sexual harassment and ordered compensation to be paid. The new section provides that the employment tribunal must consider whether and to what extent an employer has also breached the new duty created by clause 2. As a result, the duty will be considered automatically by an employment tribunal following any successful sexual harassment claim where compensation was awarded.

In practice, that means that in each sexual harassment case brought to the employment tribunal where the tribunal has found in favour of the victim and awarded compensation, it must then consider whether there has also been a breach of the employer duty—whether the employer failed to take all reasonable steps to prevent the harassment from occurring. That would also include cases of third-party sexual harassment.

If the tribunal finds that a breach of duty has occurred, the employment tribunal judge may order an uplift of up to 25% of the compensation awarded. The exact amount of the compensation uplift is at the tribunal’s discretion, but it must reflect the gravity of the breach. This means that the tribunal’s decision will consider the specific circumstances of each workplace and avoid overall disproportionate awards.

Clause 5 relates to the enforcement of the new employer duty by the Equality and Human Rights Commission. It makes some consequential amendments to ensure that the Equality Act 2006 works properly with the new duty.

Clause 6 provides that the Bill extends to England, Wales and Scotland. It does not extend to Northern Ireland, where employment law and equal opportunities are devolved. It also sets out that the Bill will come into force one year from the day it is passed, which will ensure that employers have sufficient time to understand the new legislation and take any appropriate action to comply with the new measures before they are enforced.

Employers will be supported in this transition through the Equality and Human Rights Commission’s new statutory code of practice on workplace harassment, which will improve employers’ ability to engage with their existing duties and help them to understand whether they have taken all reasonable steps to prevent harassment. The Government also plan to publish their own advice for employers in due course.

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. Obviously, the Bill is not enough on its own to tackle workplace sexual harassment. However, it is a step in the right direction in protecting employees from harassment at work. I hope it will continue to get the support it deserves. I thank all members of the Committee, the Government Equalities Office and the Government for supporting the Bill.