New duties on employers to prevent sexual harassment in the workplace are at risk of stalling. This is the Worker Protection (Amendment of Equality Act 2010) Bill, a private member’s bill supported by the government, which would bring back employers’ liability for harassment of employees by third parties at work, as well as introducing a new duty to prevent workplace sexual harassment. The bill is in the House of Lords for debate but a number of Conservative backbench peers have tabled over 40 amendments which, unless dropped, would mean the bill will be timed out.
This is a private members bill brought by Liberal Democrat MP, Wera Hobhouse and she has been speaking to the BBC about why it is needed. She told Radio 4’s World at One about the difference the bill would make:
BBC interview (extract from ‘The World at One’ – 24 April 2023)
The main objection to the bill is over concerns that employers will take “unreasonable or drastic measures” to avoid being held liable under the legislation. There is a feeling that as the bill currently stands it could have a negative impact on legitimate workplace discussions. So, employers might feel obliged to shut down conversations conducted in their workplaces to ensure they were not held liable for harassment. Will the bill become law? Wera Hobhouse says she remains hopeful – the government might be persuaded to bring it on board with their own mainstream legislation as they did with her ‘up-skirting’ bill which eventually became law.
The Worker Protection Bill has attracted a lot of media attention in recent weeks, given its subject matter. Both The Telegraph and The Mirror have run stories on the rebellion while Sky News quotes the Free Speech Union’s Toby Young who says he fears that if the bill becomes law some businesses in the hospitality sector, such as pubs, would be forced to put up "No Banter" notices or need ‘bouncers’ to police customers’ conversations.
Is that right? The central aim of the bill is to require employers to take reasonable steps to prevent harassment in the workplace but what does that mean in this context? Earlier I spoke to Anne Sammon and I put that question to her:
Anne Sammon: “So I think that's one of the challenges of this particular terminology. Reasonable steps varies very much depending on the context and the nature of what the employer is doing in their business. So, for example, if you've got someone who's working in a fast-food restaurant where the turnover of customers is massive, and it's different people every day, the steps that you might be expected to take would be quite different from those that you might be expected to take in relation to a third party contractor who's coming in every day and having contact with your employees. So that's where the challenge from reasonable steps comes in that there isn't a nice ‘one size fits all’ but that does mean, therefore, that reasonable steps is looked at in terms of, well, what can your business do and what's proportionate for you to do? I think the thing that's sometimes lost in this debate is that this is a requirement for employers to take reasonable steps, not an absolute duty to prevent harassment which is outside their control.”
Joe Glavina: “Sky News quotes the Free Speech Union leader saying if the bill becomes law it would mean pubs and the like having to put up ‘no banter’ notices and employ ‘banter bouncers’. What do you make of that?”
Anne Sammon: “I suppose, I don't think it's necessarily unlikely to have to put up notices saying, you know, treat our staff with respect. We see that in lots of lots of contexts. So, if I think about my journey in on the train, for example, there are a sign saying, ‘abuse of our staff will not be tolerated’. That's not really a difficult step for an employer to take but the more extreme measures of a bouncer to make sure that everyone's behaving appropriately, well, unless there's a particular risk to the employee, so if they work in a particularly challenging environment, then then that might be a proportionate step to take but for a person who's working in a kind of normal hospitality setting, that's not something that you would expect, or which the law would demand, if you're being required to take reasonable steps. That reasonable word is really important here.”
Joe Glavina: “As we know, there is a risk that the bill will be timed out and might never become law. So we might not see the clarity around this area of law that many hoped for and we’d be left with the status quo. Is that problematic in your view?”
Anne Sammon: “So, I think the challenging thing in this area is that where there isn't clear responsibility for employers, where it's not clear what their duties are, there's always a risk that employees, or their lawyers, choose to try and start to be creative, to create new rights that employers were not aware existed. So, for example, in the context of third party harassment, you can see that there might be scope for someone bringing an indirect discrimination-type claim. So for example, if I'm a woman, I might be able to argue that I am more likely to be subject to certain types of harassment than my male colleagues, that puts women as a group at a disadvantage and, therefore, that there is some obligation on the employer to have not ignored those issues and the difficulty for employers is, without a clear kind of obligation that the bill would provide, they might be completely unaware that they should be doing all of these things and they’ll find themselves in litigation, unexpectedly. So, my preference is always have nice clear law so that everyone understands what their obligations are and I think if we don't get this bill then then there's a risk that employers operate under the misapprehension that they have no obligations in respect of what third parties do in terms of harassment of their staff.”
We’ll be tracking this bill closely to see if the Lords drop their amendments and, if not, whether it is picked up by the government so it becomes a government bill in which case it has a very good chance of becoming law. One of the main objections to the bill is the concern that employers will be exposed to liability arising from conversations and discussions in the workplace. Sue Gilchrist explains that point in her article for Out-Law 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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