Employment Rights Bill (Tenth sitting)

Debate between Steve Darling and Jon Pearce

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[Steve Darling]

I am afraid that the hon. Gentleman and I will have to agree to differ on that point. I am sure that the Government’s proposals will support those who are facing sexual harassment from third parties. As colleagues on the Committee have highlighted, the reality is that the legislation is about taking all reasonable steps. It is not saying that when somebody walks in and abuses an employee it is an immediate red line. The reality is that the employer needs to have taken all reasonable steps. I am very comfortable with the proposals. The Liberal Democrats will vote against the amendment.

[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.

Employment Rights Bill (Sixth sitting)

Debate between Steve Darling and Jon Pearce

Committee stage
Tuesday 3rd December 2024 Public Bill Committees

[Steve Darling (Torbay) (LD)]

It is a pleasure to serve under your chairmanship, Mr Stringer. I would like to amplify the issues raised from the Opposition side of the room. There are serious concerns, and we need to ensure that the regulations are as simple as possible and easy for employers to understand. I fear that this is a charter for HR consultants and lawyers, rather than driving the agenda that I am sure most people in the room genuinely wish to see being driven forward. I ask the Minister whether, before we reach the end of this Bill stage, further simplification could be brought forward.

[Jon Pearce (High Peak) (Lab)]

It is a pleasure to serve under your chairship, Mr Stringer. The Agency Workers Regulations 2010 came into force in October 2011, under the leadership of David Cameron and the coalition, and there is similar wording in the agency worker regs. Regulation 9(4)(a) states that

“the most likely explanation for the structure of the assignment, or assignments, mentioned in paragraph (3) is that H, or the temporary work agency supplying the agency worker to H, or, where applicable, H and one or more hirers connected to H, intended to prevent the agency worker from being entitled to, or from continuing to be entitled to, the rights conferred by regulation 5”.

The legislation that we are considering is not out of the ordinary in its complexity. This is just necessary—