What the Worker Protection Bill will mean for Employers

It is unusual for a Private Member’s Bill from an opposition MP to be picked up and supported by the Government as this one has been, and this perhaps reflects the importance which is being placed on the matters addressed by this one.  The Bill seeks to amend the Equality Act 2010 (the “EqA”) to place a clear duty on employers to proactively protect employees (including the wider definition of ‘workers’) from unwanted conduct by third parties relating to a protected characteristic (age, disability, gender reassignment, marital status, pregnancy or maternity, race, religion or belief, sex and sexual orientation) with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.  This would effectively replace the “three strikes” rule, which previously required an employee to show that the employer was aware of at least two previous instances of harassment and did not take action to prevent it from happening again.  The three-strikes rule was heavily criticised, seldom used and ultimately repealed in 2013.  The Government’s view at that time was that the rule was unnecessary and that the EqA continued to provide protection against third-party harassment without it.  However, this was not reflected in the Courts, and it was found that the repeal of these provisions meant that the EqA no longer provided any protection against third-party harassment. The proposed Bill does not require an employee to point to any prior incidents but only to show that reasonable steps were not taken by the employer to protect them.  What is reasonable will depend on the circumstances, including the size of the company and the resources available to them.

There is a defence built into the Bill which means that employers will not be liable in relation to conduct that involves an overheard conversation in which the employee was not a participant or a comment which was not aimed specifically at the employee and where that conversation or comment involves the expression of an opinion on a political, moral, religious or social matter which is not “indecent or grossly offensive” and is not intended to insult the employee or create a hostile environment for them.  However, this defence does not apply to cases of sexual harassment, given that the Women and Equalities Select Committee held an enquiry in 2018 which found a number of concerns with the coverage of sexual harassment protections in the existing legislation, which the Government is specifically committed to rectifying.

An employer who fails to take reasonable steps to proactively prevent harassment by third parties can be liable to pay uncapped compensation to the employee, and where that harassment involved any degree of sexual harassment, the tribunal may order an uplift to the compensation awarded of up to 25%.  The Equality and Human Rights Commission (the “EHRC”) may also investigate and take its own enforcement action against businesses that are not meeting their obligations under the law, which can be extremely reputationally damaging.  This means that victims could inform the EHRC of their concerns without needing to take legal action against their employer.

This all sounds pretty serious and scary, especially as it relates to third parties over whom an employer has no direct control.  However, it is important to recognise that the purpose of the proposal is to support the creation of workplace cultures based on respect.  The effects of harassment on individuals are profound and long-lasting, and they are damaging to employers.  Recent reports and headlines, including the #metoo movement, indicate that there is a need for increased protection in the workplace.    Employers are not expected to take extreme measures above that which they are already expected to be doing to prevent harassment, but they should do their utmost to promote a positive workplace culture in which employees feel safe and valued.

There is no prescribed minimum standard, and the test to determine what is reasonable for each employer will be an objective one based on the specific circumstances.  However, there are a number of steps that all businesses can take to get ahead of this legislation in preventing workplace harassment.

Internally, companies should ensure that they have robust anti-harassment policies and accessible complaints procedures.  Complaints of harassment should always be taken seriously and dealt with appropriately.

Third-party facing platforms can also be utilised to educate readers and promote the company’s zero-tolerance stance on harassment and celebrate the culture of respect.

The EHRC has also published technical guidance on sexual harassment and harassment at work, which contains detailed information on how employers can prevent and deal with workplace harassment.  According to the Bill’s explanatory notes, the EHRC will also publish a statutory Code of Practice on workplace harassment in time for the Bill’s implementation.

If you would like any guidance or assistance in preparing for the proposed changes, such as creating or reviewing your internal policies and procedures, assessing risks or handling complaints, please reach out to a member of our Employment team who will be happy to help.