Worker Protection (Amendment of Equality Act 2010) Bill

Wera Hobhouse Excerpts

Friday 3rd February 2023 Commons Chamber

[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.

[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.

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Let me put this absurd suggestion to the Minister: what if the crowd at a football match were to chant or to shout, “You’re blind,” at the ref, and a partially sighted steward, hot-dog seller or some other employee of the stadium were to hear that? Surely they would be entitled to at least make a claim under this Act. If not, I would be grateful for that confirmation. I very much applaud and recognise the amendment that has been introduced, and I wish to finish by confirming my support. There is a whole list of criteria that is now required for the Act to be enforceable. I am not totally clear about that, but I think I heard the Minister list all the criteria.

[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.

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[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.

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[Imran Hussain (Bradford East) (Lab)]

I join others in thanking the hon. Member for Bath (Wera Hobhouse) for introducing this important Bill. She rightly says the levels of harassment in our workplace today are a stain on society and unacceptable in these times. I first want to make it absolutely clear that this Bill is very important and desperately needed, as I know Members across the House agree.

As I set out on Second Reading, about half of all women have experienced sexual harassment in the workplace according to the TUC, and according to the Government Equalities Office around 80% of women who have faced harassment do not go on to report it. This harassment harms not only their prospects, progression and confidence in the workplace, but their mental and physical health. It is, frankly, an experience nobody should ever have to face. That is why the Labour party supported the Bill on Second Reading and supported it without amendment in Committee, to get it on to the statute book as soon as possible.

However, we are frustrated and deeply disappointed by the amendment the Government have tabled at the last minute. It was laid without any prior consultation with any group from the women and equalities sector, without any mention during the Bill’s previous stages, and with just a week’s notice before today’s debate. We believe it significantly waters down protections against harassment in the workplace, absolving employers of liability and letting perpetrators off the hook in certain circumstances. It is also particularly disappointing given that since 2021 the Government have given the impression to women and equalities organisations that they have changed their minds on the scrapping of employer liability for third parties in 2013. That is an important point. While the legislation as proposed is a lot stronger, the protection on third-party liability in the workplace did exist in the Equality Act 2010 before it was repealed in 2013 by the coalition Government.

The Government had given the impression to women and equalities organisations that they had changed their mind on scrapping employer liability and had listened to the Women and Equalities Committee 2018 inquiry, and their response to the consultation findings seemed to make it clear that Ministers were committed to introducing the measures set out in this Bill, so what has changed and why did they not make their position on this matter clear on Second Reading? Why did they not consult on it with third sector organisations including the Fawcett Society, the EHRC and the TUC, who have been blindsided by this amendment?

[Wera Hobhouse]

I share the hon. Gentleman’s concerns, but after consulting with the EHRC and the Fawcett Society I have come to the conclusion that the overall aim of the Bill will not be compromised by the amendment. I am supporting the amendment, therefore, but I agree with the hon. Gentleman and I hope he will clarify that he supports the Bill overall.

[Imran Hussain]

Absolutely. The hon. Lady will know that, of course, our position is to support the Bill, because weaker legislation is better than none at all, but she will understand that at the heart of our point is the message that we send by watering down the Bill. Although, as hon. Members have argued, the amendment itself would not facilitate harassment, it would send a message and could create a culture. That could lead down a slippery slope towards harassment. On that basis, we are absolutely clear that the amendment is a watering down of the measures. I understand the hon. Lady’s predicament, which she has set out.

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[Wera Hobhouse]

With the leave of the House, I thank everybody here today for their support. This is a debating Chamber, and it is important that views and concerns can be expressed. I hear both sides, and I hear the concerns that this measure will stifle people just expressing an opinion. As I said, I am a liberal; I think it is important that people can express their opinions. The main thing is that we are creating respectful workplaces.

In response to the hon. Member for Bradford East (Imran Hussain), I understand the frustration about diluting the spirit of the Bill, but the sexual harassment provisions in the Bill are not being diluted; the amendments relate to other forms of harassment. I hope that by having these debates across the House we can ultimately come to a consensus on the right thing to do, because our workplaces will be better if we create ones that are free of harassment, where people are much more productive. I am sure that employers will get behind the spirit of the Bill.

It has been encouraging to see the widespread support for the Bill. I would like to thank again the Government Equalities Office, the Women and Equalities Committee, the TUC, the Fawcett Society, the Equality and Human Rights Commission and the wider alliance of organisations that have campaigned and worked towards change for a long time to make this Bill a reality.

We have turned a blind eye to workplace harassment for 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 harassment, and I reiterate that the Government need to consider the concerns of the “This Is Not Working” alliance and the EHRC. However, it is an important step in the right direction, and I hope it will continue to get the support it deserves; our workplaces will be better for it. I commend this Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time and passed.