Worker Protection (Amendment of Equality Act 2010) Bill

Roger Gale Excerpts

Friday 3rd February 2023 Commons Chamber

Liability of employer for harassment of employee by third parties

[Mr Deputy Speaker (Sir Roger Gale)]

Before we start, I remind Members of the difference between Report stage and Third Reading. The scope of Report stage is amendments that have been selected. Third Reading will follow, and that covers the whole Bill, as amended. Members may wish to bear that in mind when they seek to catch my eye. The debate on the amendments is clearly and quite tightly defined.

[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.

[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 ---

[James Wild (North West Norfolk) (Con)]

I congratulate the hon. Member for Bath (Wera Hobhouse) on her work in bringing this important measure to the House and on reaching this stage. Harassment in the workplace is rightly taken seriously, given the damaging impact that it can have on individuals. However, I rose to speak because we are considering a lot of employment legislation and it is important to put on the record that the overwhelming majority of employers, large or small, do the right thing by their staff. They want them to grow and have a rewarding career. Unfortunately, there are some employers where that is not the case. That is why the legislation is needed, but it is important that we recognise the enterprise economy that is so important in our country.

The genesis of the Bill was the 2018 Court of Appeal ruling, which made it clear that employers were not liable for third-party harassment of their staff. It clarified that the law does not extend an employer’s liability to instances of staff being harassed by third parties outside their direct control. The legislation would create new liabilities, treating an employer as harassing an employee if the employee, in the course of their employment, is harassed by third parties and, crucially, the employer fails to take all reasonable steps. That, as a number of colleagues said, is the key point. It is vital that that reasonableness defence protects employers from acts that they could not reasonably be seen to be responsible for. I therefore join in welcoming the amendment agreed to by the House, which improves the Bill, and I hope that the Minister will give further certainty and commit in guidance to set out much more clearly the position for employers so that they know precisely what they have to do.

This measure undoubtedly has widespread support. In the response the Government published in 2021, 87% of respondents said they supported the measure, but that research also worryingly highlighted that younger people, as well as disabled people, were more likely to be subjected to sexual harassment in the workplace. As I said in a previous debate, they are precisely the vulnerable people we are here to protect.

I look forward to the Bill completing its remaining stages and enhancing protections for employees, but I want further clarification and an appropriate limitation of liability for employers.

[Mr Deputy Speaker (Sir Roger Gale)]

I call the Opposition Front Bencher.