3 The Equality Act 2010 provides for legal protections against sexual harassment in the workplace. Despite this, persistent reports and revelations that have emerged in recent years indicate that it remains a problem within the workplace.
4 In 2018, the Women and Equalities Select Committee ("WESC") held an inquiry on sexual harassment in the workplace. The WESC report highlighted a number of concerns with sexual harassment protections in the existing legislation. In response, the Government committed to consulting on the concerns raised with a view to ensuring that the legislation is operating effectively.
5 The Government consultation on Sexual Harassment in the Workplace ran in 2019.1 The consultation considered the evidence in respect of, among other things, the introduction of a mandatory duty on employers to protect employees from harassment in the workplace and strengthening and clarifying the law in relation to third party harassment.
6 The consultation, which closed in October 2019, received 133 responses. Alongside the consultation, the Government also ran a public questionnaire inviting the views and experiences of members of the public, to help the Government understand people’s lived reality of these issues. The questionnaire received 4,215 responses. Government Equalities Office officials (part of Cabinet Office), supported by lawyers, have continued to consult key stakeholders throughout the period of policy development.
7 The Consultation response was published on 21 July 2021.2 The response committed to introducing two legislative measures when parliamentary time allowed: a duty on employers to take reasonable steps to prevent sexual harassment and explicit protections from harassment by third parties. The response also included other non-legislative commitments, e.g. supporting the Equality and Human Rights Commission ("EHRC") to produce a statutory code of practice on workplace harassment, alongside producing Government guidance for employers on sexual harassment. The legislative commitments and the commitment to support the EHRC on the Code of Practice were then also included in the Government’s strategy for Tackling Violence Against Women and Girls, published on 21 July 2021.3
8 The Worker Protection (Amendment of Equality Act 2010) Bill will take forward the two legislative measures described above.
Third party harassment
9 Employer liability for third party harassment was originally introduced in 2008 by an amendment to the Sex Discrimination Act 1975, and later carried through into section 40 of the 2010 Act. In 2013, the provisions were repealed.
10 The Government's view was that they were unnecessary: at the time of review in 2013, the provisions were only known to have resulted in two employment tribunal rulings and, until 2018, the Government’s position was that the 2010 Act continued to provide protection in cases of third party harassment under section 26. However, the 2018 ruling by the Court of Appeal in Unite the Union v Nailard clarified that the 2013 repeal of the employer liability for third party harassment provisions meant that the Equality 2010 no longer provided any protection in such cases.4
11 In addition, the Government considered that the provisions relating to third-party harassment were confusing. Significant criticism was made, including by employers and their representative bodies, of the provisions’ design which required two occasions of known harassment to have occurred before liability was triggered - known as the ‘three strikes’ rule.
12 This Bill reintroduces employer liability for the harassment of their employees by third parties. The ‘three strikes’ formulation will not be replicated and instead, liability will be triggered without there needing to be a prior incident. This will bring being harassed by a third party, for example a customer or client, in line with being harassed by a colleague.
"All reasonable steps" and free speech
13 Employers may already be vicariously liable for acts of harassment carried out by an employee against another employee. As set out above, Clause 1 of this Bill extends employer liability to cover acts of harassment committed by third parties, such as customers or clients, if the employer fails to take all reasonable steps to prevent the harassment.
14 As the Bill has progressed through Parliament, stakeholders raised concerns that the extension of these protections, whilst important and necessary, could inadvertently worsen the chilling effect that anti-harassment legislation could have on free speech.
15 New subsections (1C) and (1D) have been inserted into section 40 of the 2010 Act to address these concerns in relation to third-party harassment. New subsections (4A) and (4B) have been inserted into section 109(4) of the 2010 Act to address these concerns in relation to employee-on-employee harassment. The provisions make clear to employers that, whilst the Government expects them to take action against workplace harassment, in certain cases this action should fall short of prohibiting the conversations of others.
16 The provisions apply only when certain conditions are met - for example, in cases of conversations overheard by employees. Employers will still be expected to take steps to prevent targeted, indecent or grossly offensive conversation in the workplace, such as racial slurs. Further, the provisions do not apply to cases of sexual harassment.
1 Government consultation on sexual harassment in the workplace (11 July 2019): https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace
2 Government response to the consultation on sexual harassment in the workplace (21 July 2021): https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace
3 Tackling Violence Against Women and Girls strategy (21 July 2021): https://www.gov.uk/government/publications/tackling-violence-against-women-and-girls-strategy
4 Unite the Union v Nailard  EWCA Civ 1203