Worker Protection Bill update – third party harassment scrapped?
21 July 2023
Amendments agreed by the House of Lords to the Worker Protection Bill look likely to be accepted by the government. It seems that employer liability for harassment by third parties will no longer be introduced, and the new duty to prevent sexual harassment has also been watered down.
As we explored in our previous article on the Worker Protection Bill, this legislation proposed new obligations on employers to prevent harassment and involved some of the most significant changes to workplace discrimination law in Great Britain since the 2010 Equality Act.
The Bill ran into problems during its passage through Parliament. The government introduced an amendment that was designed to tackle concerns around the potential impact of the new anti-harassment protections on free speech. This would have had some (seemingly) unintended consequences, by changing the well-established existing test for harassment by colleagues as well as by third parties. The Bill attracted more controversy when it reached the House of Lords, with concerns that even as amended it would jeopardise free speech and increase the regulatory burden on employers.
Following a debate on 14 July 2023 the House of Lords has now agreed amendments to the two main provisions in the Bill.
Third party harassment provisions removed
One of the key provisions in the Bill was the re-introduction of protection against harassment of employees by third parties, such as customers and clients. This part of the Bill has now been removed altogether, meaning that there will be no change to the law on employer liability for harassment by third parties after all.
The advantage of this approach is that it avoids the somewhat convoluted amendments previously introduced by the government relating to overheard conversations about political, moral, religious or social matters. This would have been difficult for employers to operate in practice and would have caused confusion with the general established test for harassment. It will undoubtedly be disappointing, however, for those who feel that the current law does not adequately protect workers (and women in particular) from harassment by third parties.
No duty to take “all” reasonable steps to prevent sexual harassment
The other key provision in the Bill was a new duty on employers to take “all reasonable steps” to prevent sexual harassment of employees in the course of their work.
The Bill has been amended to remove the word “all” from this provision, meaning the duty is now simply to take “reasonable steps”. It seems from the House of Lords debate that this is intended to be a lower bar than a requirement to take “all” such steps. Concerns were raised that otherwise there were an “almost infinite” number of steps that employers could take, and this was not appropriate for a new duty being introduced for the first time.
This new proactive duty was introduced after campaigning by the Fawcett Society among others, and many may see it as disappointing that a measure designed to tackle the very real problem of sexual harassment in the workplace has been watered down.
It is currently unclear what effect the removal of the word “all” will have on enforcement of this provision. Enforcement will be via the Equality and Human Rights Commission (EHRC) and an uplift to compensation for sexual harassment of up to 25% where an employer has failed to take those reasonable steps. The House of Lords debate suggests that this proactive duty will extend to preventing sexual harassment by third parties. It is possible that the EHRC could use its powers to enforce the duty in relation to third parties as well as colleagues (although we do not currently know whether it intends to do so). However, the uplift to compensation can only apply if an employee succeeds in a claim against their employer, which will no longer be available for cases of third party harassment.
Employers should still take action
It was confirmed during this debate that the government will seek to accept these amendments. It is therefore very likely that the Bill will be passed in its current form.
As advised in our last article, all employers should take action to comply with the new positive obligation to prevent sexual harassment. The removal of the word “all” from the requirement to take reasonable steps does not prevent this from being an important new duty that employers will need to take seriously.
The scrapping of the third party harassment provisions does not mean that employers can simply ignore this issue. Under the current law, an employer still risks being liable for discrimination or harassment itself if it ignores complaints about harassment by third parties and continues to put vulnerable employees at risk.
More generally, taking positive steps to support vulnerable colleagues and to minimise the risk to them from third parties is a tangible step that many employers will want to take on a voluntary basis as part of their DE&I initiatives.
Finally, although Labour Peers supported the compromise amendments, Baroness Thornton said she could not promise that a Labour government would not return to the issue, so watch this space!