The Worker Protection (Amendment of Equality Act 2010) Bill recently had its first reading in the House of Lords and is likely to be passed as law later this year. If that happens it will come into force a year after it is passed.
The proposal under the Bill is that the Equality Act 2010 will be amended to expand the protection available to employees for the acts of third parties such that:-
- An employer will be treated as harassing an employee when a third party, for example, a customer or client, harasses the employee in the course of their employment and the employer has failed to take all reasonable steps to prevent harassment.
- Employers will be under a new duty to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment. This duty can be enforced by the Equality and Human Rights Commission, as well as by an Employment Tribunal.
- If a claim for sexual harassment is upheld and an employer is found to have breached a duty to take reasonable steps to prevent the sexual harassment, then the Tribunal may order an uplift in compensation of up to 25%.
The Equality Act 2010 used to contain specific rules on third party harassment making employers liable in certain circumstances, but these provisions were repealed in 2013. Certain high profile cases in the meantime have highlighted how this has left technical difficulty in employees bringing claims of this nature because in order to succeed they would need to show that their protected characteristic was the reason for the employer’s failure to protect them against harassment by the third party (as opposed to establishing a reasonable failure to protect them from unlawful discrimination).
This has led to calls for a review and change in the law, hence the introduction of this Bill. The new proposed law reintroduces the concept of employer liability for harassment by third parties, without a requirement even for the employer to have knowledge of previous occasions of harassment for example.
There are some quite complicated provisions concerning conversations or speeches which may occur involving the expression of an opinion on a political, moral, religious or social matter. Concerns were raised that very strict rules here may impede free speech and a balance needed to be struck. Employers are still expected to take steps to prevent targeted, indecent or grossly offensive conversations in the workplace.
Other than in cases of sexual harassment, however, an employer will not be taken to have failed to take all reasonable steps to prevent harassment where it involves a conversation in which the employee is not a participant (or a speech which is not aimed specifically at the employee), the conversation (or speech) contains the expression of an opinion on a political, moral, religious or social matter, the opinion expressed is not indecent or grossly offensive, and the harassment is not intentional
The Bill provides some potential welcome clarity and bridges a gap left by an earlier repeal of certain sections of the Equality Act and a lack of certainty in this area. It remains to be seen how the nuances around freedom of speech and the balancing act to be struck here will make cases difficult to prosecute or defend in practice, and undoubtedly there will be case law which will evolve in this area.
Best practice in any event dictates a zero tolerance to all forms of discrimination and harassment, with adequate policies covering all elements of the workforce (including treatment by clients and members of the public), as well as appropriate and regular staff training and management specific training, and ensuring that complaints reported are dealt with consistently, fairly and appropriately.
If you would like more information about this Bill or any other employment law advice please do get in touch with one of the Employment Team.