New duties on employers to prevent sexual harassment in the workplace have come a step closer, and with an important late amendment. This is the Worker Protection (Amendment of Equality Act 2010) Bill, a private member’s bill supported by the government which will bring back employers’ liability for harassment of employees by third parties at work, as well as introduce a new duty to prevent workplace sexual harassment. The amendment to the bill is significant – we’ll take a look.
The reason for the amendment is the government’s concern that employers will take “unreasonable or drastic measures” to avoid being held liable under the legislation. Minister for Women, Maria Caulfield, explained in a debate in the House of Commons that the unamended bill could have a negative impact on legitimate workplace discussion. She said employers might “feel obliged to shut down conversations conducted in their workplaces” to ensure they were not held liable for harassment.
The amendments would give employers a defence in certain circumstances. So, they will not be considered to have failed to take all reasonable steps to prevent harassment if: the harassment is unintentional and stems from a discussion to which the employee isn’t a party or to speech which isn’t directed at them; people are discussing or expressing an opinion on a political, moral, religious or social matter; and the opinion isn’t directed at the employee and isn’t “indecent or grossly offensive”.
In her article for Out-Law, Sue Gilchrist, explains how the changes stem from the stream of cases on issues reflecting a clash of, for example, religious beliefs, and views on gender identity and gay marriage. She says that while guidance from the Equality and Human Rights Commission is expected, there is likely to be satellite litigation around issues such as what constitutes ‘indecent’ or ‘grossly offensive’ opinion. In parliament, Maria Caulfield cited another example, the 2018 case of Sule v Shoosmiths where a tribunal found an employer liable for harassment following an incident when two employees were overheard within earshot of another colleague. Caulfield said: “There are concerns that such cases may cause some employers to feel under a duty to end or modify such conversations, to prove that they have taken all reasonable steps to prevent harassment.”
Going forward, Sue Gilchrist has a message for HR. She says: “The amendment looks set to protect legitimate and appropriate workplace discussions, and employers would be well-placed to set in place standards for conduct which encourage tolerance and appropriate behaviours at work.”
As for the Bill, it has now passed from the House of Commons and is with the House of Lords for further scrutiny.
One aspect of the new positive duty to prevent harassment will undoubtedly be around staff training. If the bill becomes law, as expected, the emphasis will change with a greater focus on employers rolling out training programmes on a much more proactive basis. So, let’s hear more about that. Trish Embley is our Head of Client Training, and she joined me by video link from Birmingham to discuss that. I started by asking Trish what she makes of the bill:
Trish Embley: “To me it is just building on what I would say is the existing direction of travel in terms of what employers are obliged to do with harassment in the workplace and particularly anti-harassment training. So, we had not so long ago and EAT decision, Allay Limited v Gehlen, that basically said you can’t take a ‘tick box’ approach to preventing harassment in your workplace. I think they put it quite nicely in that judgement where they said it is not good enough to get your employees together and say, ‘come on everyone, don’t harass each other, not back to work’. So, when we look at this term ‘prevent’ it has got to be outcome focused. So, I think many employers are looking at anti-harassment training and they might, for example, produce 15 minutes of e-learning for their employees. Now the question I would ask there is whether that is actually going to change culture and outcomes. I think it is a great starting point, I think you can get across some of the complex issues that have to be considered around where is the line drawn with banter, what is the relevance of intent, however, I think we are going to have to take that to the next stage and by that, I mean discussing things like harassment in team meetings or workshops or on-site gatherings and meetings because there are a lot of complex issues in harassment. There is that balance with not wanting to work in a sterile work environment and many of our clients, in their values, will talk about bringing your whole selves to work and how work should be a fun place, so it is really, I think, going that next stage with prevention in terms of a deeper dive into training around behaviours, what you can do, what the outcome of any action might be and particularly, I think, offering those who are victims of harassment a lot of comfort about why this will not be career limiting, this isn’t a negative thing for you to do, it’s something that the organisation want people to speak up on and they are encouraging people to speak up, and demonstrating that, how they are creating that culture.”
Joe Glavina: “Can I ask you about reputation, Trish? Previously harassment training has been used as evidence to support an employer’s ‘reasonable steps’ defence in the tribunal. Going forward, when this new duty comes in, employers will be at risk of being ‘called out’ by anyone, potentially, who thinks they are failing in their duty. Do you agree?”
Trish Embley: “Yes, absolutely. We‘ve seen over the years that reputation and keeping to ‘brand values’ have overtaken, I would say, employers’ concerns about litigation. So, again with this proactive duty becoming this sort of stand-alone mandatory duty it will, I think, raise the profile of the importance of employers actually taking positive steps in the workplace to change the culture and to combat harassment. I think as that awareness is raised more people will be prepared, whether that be through social media or the broader media itself, to speak up and say look my employer isn’t complying with the statutory duty and even if they don’t bring tribunal claims I think that in itself will be a driver for employers to say look this has got to become a real priority now for us.”
That Out-Law article by Sue Gilchrist tracking progress of the bill and the recent amendments to it is called ‘Government plans to limit UK employer liability over views expressed at work’. We’ve put a link to it in the transcript of this programme.
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