The UK government has announced that it will support the Worker Protection (Amendment of Equality Act 2010) Bill (the Bill), which represents one of the most notable changes to UK workplace discrimination law since the 2010 Equality Act. The Bill imposes a proactive duty on employers to take all reasonable steps to prevent the harassment of its employees, including by third parties, with a compensation uplift where they fail to do so.
Why the Bill is being introduced
In 2018, the Women and Equalities Select Committee (WESC) published a damning report on the prevailing extent of sexual harassment in the workplace. This report, along with campaigns by the Fawcett Society and other groups, led to the UK government undertaking its own consultation from 11 July to 2 October 2019, which found that 54% of respondents had experienced harassment at work.
High-levels of harassment, and notably sexual harassment, in the workplace has been common place for years. The 2022 Gender Equality in the Workplace report by Randstad found that 72% of the 6,000 women polled had experienced or witnessed harassing behaviour by male colleagues, and that 67% of them had experienced some form of gender discrimination. 32% of the women polled felt that their careers had been affected by sexual harassment.
Studies have shown that harassment is not limited to male colleagues, but is also inflicted by third parties. A 2018 report by the TUC found that 36% of 18-34 year olds who have experienced some form of workplace harassment said that the perpetrator was a third party.
What changes are being proposed?
Broadly, the Bill intends to introduce three key amendments to the Equality Act 2010:
i. Impose a proactive duty on employers to take all reasonable steps to prevent the sexual harassment of employees in the course of their work
While employers were already vicariously liable for discrimination, harassment or victimisation committed by an employee during the course of their employment, the Bill goes far beyond this by introducing a proactive duty on employers to take all reasonable preventative action, and by extending protection to cover harassment by third parties.
It is anticipated that “reasonable steps” may require employers to implement the following:
- Sufficient and regular training on harassment in the workplace
- Equal Opportunities policy
- Harassment and Bullying policy
- Regular reviews of relevant policies to demonstrate compliance and preparedness
ii. Re-introduce protection against harassment by third parties
Under the Equality Act 2010, there were protections against harassment by third parties. However, these protections proved ineffective in practice, as an employee needed to show (i) a minimum of three instances of third-party harassment, and (ii) that the employer failed to take reasonable preventative action. This was known as the “three-strikes rule”, and proved to be too high a bar to be an effective tool. It was in any event repealed in 2013.
The Bill is intended to go far beyond the three-strike rule, removing the three-incident bar for enforcement. Although the impact has been limited by the government’s proposed amendment to the Bill, as set out in section 4 below.
iii. Introduce a compensation uplift of up to 25% where an employer fails to take all reasonable steps to protect employees against sexual harassment
The Bill is seeking to impose an enforcement mechanism to further encourage employers to tackle the issue of sexual harassment aggressively and head-on.
Compensation for sexual harassment is uncapped, and the amount awarded varies according to the loss and the severity of the injury to feelings. According to the Employment Tribunal’s published statistics, the average sex discrimination award in 2021/2022 was £24,630, with a top award of £184,961. A 25% uplift would therefore have the potential to elevate an award to a considerable amount in some cases. Under the Bill, the Equality and Human Rights Commission (EHRC) will also be able to take enforcement action.
Proposed amendment to the Bill: alleged free speech implications
The government have tabled an amendment to the Bill, on the grounds that there is a potential risk of repression of free speech in the workplace. Hansard reported a debate on the Bill on 3 February 2023, in which Maria Caulfield (Conservative MP, Lewes) stated that:
“There are concerns that the extension of protections against workplace harassment set out in the Bill, while entirely necessary, could inadvertently worsen the chilling effect on free speech in the workplace…”
The government’s reasoning is that “employers may take unreasonable or drastic measures to avoid liability for harassment of their staff, particularly by third parties, to the extent that they will feel obliged to shut down conversations conducted in their workplaces.”
The government amendment seeks to clarify what is expected of employers under the Bill (and the wider Equality Act 2010), by setting “a ceiling on what can be considered reasonable steps for an employer”. Under the amendment, employers would not be liable for acts which would normally amount to harassment but where the conduct occurs in a conversation in which: (i) an individual is not a participant, (ii) an individual is not the object of the conversation, (iii) the speaker is expressing an opinion on a political, moral, religious or social matter, (iv) the opinion is not offensive, and (v) there is no intent to violate dignity.
The amendment would not apply to sexual harassment.
Opponents to the amendment have expressed concerns that this creates a new test for harassment that creates confusion and applies a lower threshold of protection for sexual harassment and a higher threshold for harassing behaviour related to protected characteristics. Critics have also pointed out that the aim of the amendment runs contrary to the Bill’s aim of exposing and prohibiting harassment in the workplace.
How can employers prepare for the Bill?
The Bill is very likely to pass, although there is not yet a proposed date. Furthermore, it appears likely that, despite the controversy and opposition, the Government Amendment will also pass.
As such, employers should be preparing themselves now, so that they can achieve seamless compliance with the new law. Some practical steps employers could take include:
- Carrying out reviews of current harassment, bullying, equal opportunity and other relevant policies. It is recommended that these are updated to include situational training and examples of harassment, including that by third parties and to offer support and guidance on how to safely intervene and support victims.
- Establish clear reporting lines so that employees can confidently and safely report incidences of harassment in the workplace.
- Identify harassment risks in respect of workplace roles and circumstances, with specific protective measures. For instance, it would be advisable to carry out assessments on which roles frequently interact with third parties, in what ways and in what environments, so that tailored steps can be taken to reduce risk. It may also be beneficial to consult with employees/employee representatives on their experiences and what measures they think would make a practicable difference.
- Create or update registers for reporting incidents of harassment (taking into account all data protection and storage requirements).