Worker Protection (Amendment of Equality Act 2010) Bill

Maria Caulfield Excerpts

Friday 3rd February 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Health and Social Care (Maria Caulfield)]

I beg to move amendment 1, page 1, line 1, at end insert—

“(1) The Equality Act 2010 is amended as follows.”

This amendment is consequential on Amendments 3 and 4.

[Mr Deputy Speaker (Sir Roger Gale)]

With this it will be convenient to discuss the following:

Amendment 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.’”

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.

[Maria Caulfield]

As the House is aware, the Government have provided their full support for the Bill throughout its passage. We believe that fundamentally everyone should be able to thrive in the workplace, without fear of harassment or violence, and the Bill helps to ensure that. The Government remain committed to this important piece of legislation and we hope it will continue to garner the strong cross-party support we have seen in its previous stages.

However, as with every new piece of legislation put before the House, we must be alive to any potential unintended consequences of changes in the law and seek to address those, where possible. There are concerns that the extension of protections against workplace harassment set out in the Bill, while entirely necessary, could inadvertently worsen the chilling effect on free speech in the workplace.

At present, under the Equality Act 2010, employers can already be considered vicariously liable for the harassment of an employee in the course of their employment, unless the employer can show that they have taken all reasonable steps to prevent the harassment from happening. Clause 1 of the Bill extends employer liability to also cover acts of harassment committed by third parties, such as customers or clients, if the employer fails to take all reasonable steps to prevent that harassment.

In 2018, the employment tribunal case of Sule v. Shoosmiths found the employer liable for harassment, following an incident when two employees were overheard within earshot of another colleague. There are concerns that such cases may cause some employers to feel under a duty to end or modify such conversations, in order to prove that they have taken all reasonable steps to prevent harassment.

Consequently, as a result of the Bill, it was feared that employers may take unreasonable or drastic measures to avoid liability for harassment of their staff, particularly by third parties, to the extent that they will feel obliged to shut down conversations conducted in their workplaces. That could include pubs seeking to prevent certain topics of discussion on their premises or universities cancelling or not inviting speakers to speak on matters that are considered controversial.

Therefore, the Government have tabled an amendment to the Bill to clarify to employers what is expected of them under the Bill, and the wider Equality Act 2010. We want the legislation to be clear, but while employers will be expected to take action against workplace harassment, those actions should fall short of prohibiting the conversation of others, subject to certain limitations that I will set out shortly.

The amendment is designed specifically to signal to employers and employment tribunals that in certain harassment cases, where the conduct concerns conversations where the claimant was not a participant, employers will not be expected to prevent the expression of opinion in order to avoid liability. Examples of cases where the claimant is not a participant could include overheard conversations or speeches not made directly to the claimant.

In those cases, an employment tribunal will not treat an employer as having failed to take all reasonable steps to prevent workplace harassment simply because they did not seek to prevent the expression of the opinion that formed part of the harassment claim. In other words, the amendment sets a ceiling on what can be considered reasonable steps for an employer. It does not seek to define what reasonable steps employers should take, but carves out one particular step that they are not expected to take.

The amendment will apply to cases of employee-on-employee harassment and cases of third-party harassment, with changes being made to both section 109(4) and section 40 of the Equality Act 2010 through amendments 3 and 4. Amendments 1 and 2 are simply consequential on amendments 3 and 4. However, a number of conditions all need to be met in order to trigger the amendment. Members can see those set out clearly in a list in proposed new subsections (1C) and (4A) in amendments 3 and 4 respectively. I hope Members will have the document to hand, as I will address each of the conditions in turn.

First, the amendments will apply only where the harassment is related to a protected characteristic and has taken place in the course of the claimant’s employment. That means it will not apply to cases of sexual harassment or less favourable treatment because one has either submitted or failed to submit to sexual harassment, or harassment related to sex or gender reassignment, as described in section 26 of the Equality Act 2010. Secondly, as I have set out above, the harassment must involve a conversation in which the claimant is not a participant or a speech that is not specifically aimed at them. Thirdly, the conversation or speech must contain the expression of an opinion on a political, moral, religious or social matter. That would exclude, for example, opinions on individual employees. Fourthly, the opinion expressed must not be indecent or grossly offensive.

Finally, the harassment must not be intentional. Under the Act, harassment is defined as unwanted conduct that has the purpose or effect of creating a hostile environment or violating a person’s dignity. The amendment will capture only cases where the harassment was not found to be intentional, as per the definition in section 26(1) of the 2010 Act. These limitations are intended to ensure that employers are not discouraged from taking steps to prevent extreme conduct, such as racial slurs or rape jokes, under the amendment. The Government are clear that such behaviour is not acceptable. The amendment is about protecting legitimate and appropriate workplace discussions, not targeted and grossly offensive remarks, or any form of sexual harassment. I should also be clear that the amendment will not affect the new duty on employers to take all reasonable steps to prevent sexual harassment in the workplace, as introduced in clause 2 of this Bill, which remains a key tenet of the Bill, as originally drafted.

To conclude, let me reiterate the Government’s support for the Bill and its important provisions. The employer duty and third-party harassment protections introduced by clauses 1 and 2 deliver against two Government commitments made in our national strategy for tackling violence against women and girls. They have widespread public and stakeholder support, and will ultimately improve working culture across this country. Amendment 1 does not detract from that. It provides what we believe is a necessary clarification of the expectations that this Bill and the wider Equality Act place on employers in relation to workplace harassment. We hope it will assist employers and employment tribunals in the accurate implementation of the new legislation and, in doing so, safeguard our vital right to free speech. The Government greatly welcomes the fact that the Bill’s sponsor, the hon. Member for Bath (Wera Hobhouse), has signed her name in support of the amendment. We hope that other Members will agree with our making this change and see the Bill on to the statute book as soon as possible.

[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.

--- Later in debate ---

[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

--- Later in debate ---

[Maria Caulfield]

I congratulate the hon. Member for Bath (Wera Hobhouse) on bringing the Bill to its Third Reading and on the way in which she has championed the fight against workplace harassment. I very much take on board her point about the short notice of the amendments, but I am grateful for her support for them. As I am sure she has heard in the debate, there were concerns about freedom of speech.

I thank all hon. Members who have taken part in the debate—it has been a privilege to debate the proposals with such strong support in the House. I thank my hon. Friend the Member for Guildford (Angela Richardson) for her support. I hope that the legislation will protect her daughter’s generation in the workplace. My hon. Friend the Member for North West Norfolk (James Wild) was right: the vast majority of employers do the right thing, but it is important to protect those in the workplace when the right thing does not happen.

My hon. Friend the Member for South West Hertfordshire (Mr Mohindra) was right to say that there can be unintended consequences, and he gave good examples of them. I am pleased that the amendments have reassured him and that he feels able to support them. That is also the case for my hon. Friend the Member for Bracknell (James Sunderland), who had concerns about freedom of speech. I am pleased that our amendments have also given him reassurance.

Above all, the Bill is about fairness, safety and protecting the workplace. The Government are committed to ensuring that everyone feels safe and is able to thrive in work. In 2019, we held a consultation on sexual harassment in the workplace, and we hope that this legislation will meet many of the concerns that were raised during that period. The Bill demonstrates its own importance, as we have heard this afternoon. The two principal measures are to introduce explicit protections from workplace harassment by third parties such as customers or clients and to place a duty on employers to take all reasonable steps to prevent their employees from experiencing harassment. These new protections against third-party harassment will make an employer legally liable if they fail to take all reasonable steps to prevent third parties from harassing their staff. In concrete terms, this means that employers will now assess the harassment risk that third parties pose in their workplace and will take steps to protect their staff. Bartenders will be better protected from unwanted sexual conduct by drunk customers, and NHS staff will be better protected from racial abuse by patients.

The question of whether an action is reasonable is very familiar, and we have heard a lot about it today. I stress that the Bill does not require employers to succeed in stopping all harassment at work—that is, sadly, impossible and would be unrealistic. The Bill requires employees to take all reasonable steps to protect their employees in circumstances in the workplace where harassment can take place. On Report, Members supported the Government’s amendment to clarify for employers what is expected of them under the Bill and the wider Equality Act.

To conclude, the measures in the Bill will strengthen the protection for employees against workplace harassment. The Government are pleased to continue to support this private Member’s Bill, and I pay tribute to the hon. Member for Bath for making such progress with it.