The Worker Protection (Amendment of Equality Act 2010) Bill is set to change and expand the anti-harassment provisions as they apply to the workplace. In future, organisations will need to take pre-emptive action, and could be made liable for harassment of staff by third parties (this was explicitly removed as a form of liability in 2013).
Currently an employer has obligations to address harassment in the workplace and can seek to defend a legal claim if it can show that the organisation took all reasonably practicable steps to prevent harassment. This is a general defence contained in the Equality Act 2010, which can also be used to defend other acts/allegations of unlawful discrimination. It is hard to run as a defence to a claim, requiring an employer to show initiative-taking and preventative steps.
Harassment is defined in the Equality Act 2010 in two ways:
- Sexual harassment, unwanted conduct of a sexual nature or other conduct based on sex (for example, refusing an amorous approach or invitation for a date); and
- Conduct which violates a person’s dignity, or creates an intimidating, humiliating, hostile, degrading, or offensive environment and which relates to a protected characteristic (sex, transgender, race, disability, religion or belief, sexuality/sexual orientation or age). Harassment of this type does not need to be intended by the perpetrator: it does not matter if they meant to intimidate, because the behaviour will be unlawful if it has that effect.
Increased liability and penalties
The Bill will impose a duty on employers to take all reasonable steps to prevent sexual harassment, and a failure in this duty could lead to an Employment Tribunal increasing any award by up to 25%.
This is an important change of emphasis and will be underpinned by a new statutory code on sexual harassment to be published by the Equality and Human Rights Commission. We should expect that code to require training on standards of conduct, policies and practices which address sexual harassment and employers needing to demonstrate a zero-tolerance approach.
Responsibility for third parties
In addition to updating policies and changing workplace practices, because the Bill will re-introduce new protection against third-party harassment, organisations must take a similar zero-tolerance approach to customers, users, clients and other third parties who might harass their staff. The sort of action required (in addition to updating harassment/dignity at work policies), might include clear warnings and visible notices, contractual terms and obligations, and ensuring concerns are addressed and suitable action taken against individuals.
Balancing freedom of expression
As the Bill has progressed, concerns were raised about curtailing freedom of expression and the need to balance this with the right not to be harassed. What happens for example, if an employee (perhaps working behind a bar in a pub or in a restaurant) overhears an exchange between customers which might have racial or religious content, which the employee finds offensive?
To address this, the Bill was amended to exclude liability (and conduct is deemed not to be offensive etc.) where the comment or action:
- relates to a protected characteristic; and
- is a comment or expression of opinion about a political, moral, religious or social matter; and
- which was not aimed at the employee (or they were not participating in the conversation),
provided the opinion expressed is not indecent or grossly offensive.
This is a specific exception and delicately balanced as a test. Importantly, the exclusion does not apply to comments which might be considered sexual harassment. The explanatory notes to the Bill say that because of this limitation, an employer’s anti- harassment policy “does not need to include the prohibition of conversations about controversial topics” in a public setting, which means between customers; care must still be taken to address such behaviour where it occurs between employees and make clear this is not acceptable.
It seems likely that these new obligations will come into effect during 2024 (12 months after the Bill becomes law). Before then we can expect the EHRC to produce the new statutory code (although existing guidance is in place for employers).
Organisations should revisit their dignity/respect at work policies, anti-harassment practices and plan their campaign to re-communicate acceptable standards of conduct. Make clear what is unacceptable behaviour in the work environment, as well as the steps that will be taken to address harassment by third parties.
The EHRC has the power to act against employers who it considers have failed in their duties and several recent Section 23 agreements (legal agreements) with high-profile organisations illustrate the sort of action required:
- communicating clearly that the employer has a zero-tolerance approach to harassment;
- issuing/reviewing policies and providing training on them;
- revisiting (or introducing) procedures to make clear how the organisation tackles complaints;
- ensuring key staff, such as managers, HR, OH, welfare/wellbeing officers and others in counselling roles (for example, harassment counsellors or mental health champions) receive training on complaints procedures;
- keeping both policies and procedures refreshed and updated;
- pulse/anonymous surveys to include respect at work topics;
- where an organisation has multiple sites, working closely with third parties (such as franchisees), supporting those locations/third parties, with material and know-how, to roll out anti-harassment training and initiatives;
- ensuring appropriate reporting and analyses of issues and concerns, thus ensuring senior/executive oversight of these issues and demonstrating senior commitment.
If you have any questions about the Worker Protection (Amendment of Equality Act 2010) Bill, please contact Audrey Williams.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.