The Worker Protection (Amendment of Equality Act 2010) Bill: what are the obligations for employers?

The Worker Protection (Amendment of Equality Act 2010) Bill will change and expand the anti-harassment provisions as they apply to the workplace, having received Royal Assent on Thursday 26 October.

The House of Lords made two amendments to the final version of the Bill, removing the proposed liability of employers for third-party harassment in the workplace and changing the requirement on employers to take “reasonable steps” rather than “all reasonable steps” to prevent sexual harassment. The Bill will, however, provide guidance for employers so they know how to address these problems and require employers to take pre-emptive action against sexual harassment in the workplace.

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 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

Although the Bill was amended to remove direct liability on an employer for third parties who harass staff (such as customers or service users), an employer does still need to ensure employees are generally protected against harassment and may be liable if they don’t support or protect particular employees where the failure amounts to discrimination. For example, an employer who intervenes to protect a young employee subjected to harassment by a customer but doesn’t when an older employee complains because they take the view the latter should be better able to cope with such abuse, might be guilty of age discrimination. One can easily see how this might result in different responses for individuals by a biased employer or manager in the case of race or religion.

In addition, there is a suggestion that new guidance which is expected will also address third-party harassment.

Finally, separate legislation amending the Public Order Act 1986 which has also received Royal Assent will render intentional harassment, alarm or distress because of an individual’s sex a criminal offence and could include offences of this nature depending on the workplace (see the Protection from Sex-based Harassment in Public Act 2023).

Next steps

The new obligations will come into effect during 2024 (12 months after the Bill became 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 and anti-harassment practices, and plan their campaign to re-communicate acceptable standards of conduct. They should 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.