Earlier this year, we reported that the Worker Protection (Amendment of Equality Act 2010) Bill was passing through Parliament and anticipated to receive Royal Assent in 2024. However, several key elements of the Bill relating to third-party liability and sexual harassment have now been either amended or scrapped entirely following its passage through the House of Lords.
Third-Party Liability Removed
The original draft of the Bill sought to re-introduce third-party liability, whereby employers may have been held liable for harassment by third parties, such as clients or contractors attending the employer’s premises. Third-party liability was not a new concept, as provisions relating to third-party harassment had previously been contained within the Equality Act 2010 under the so-called “three-strikes rule” until they were repealed in 2013.
The Bill sought to not only re-introduce the concept of employers being liable for harassment by third parties but to simplify it by making it such that employers could only escape liability if they could show that they had taken all reasonable steps to prevent it. This was a significant shift from the previously difficult and cumbersome three-strikes rule.
However, Parliament had significant concerns regarding the wide impact these provisions could have, particularly on free speech. Whilst discussion did take place around watering these provisions down to relate only to comments directed specifically at employees, the concerns remained too great, and the provisions have been completely removed.
This is an undesirable situation for many front-facing employees in the hospitality and service sectors, in particular. It is also disappointing that there is now no imminent likelihood of this issue being revisited. Whilst there may still be indirect protection for employees against third-party harassment, such as the potential to pursue a constructive unfair dismissal complaint in certain circumstances, there is now no direct recourse for third-party harassment.
Duty to Prevent Sexual Harassment Watered Down
The duty of employers to prevent sexual harassment has also been watered down from that contained within the original Bill. The Bill was originally drafted such that employers would be required to take all reasonable steps to prevent sexual harassment. However, this has now been subject to a redraft meaning that employers will only be required to take reasonable steps, rather than all reasonable steps.
Whilst the removal of the word “all” may seem rather innocuous on the face of it, the effect is significant. A requirement to take all reasonable steps would render an employer liable for sexual harassment if an employee could point to even one preventative measure that could have been taken but wasn’t. By removing the word “all”, there is greater scope for an employer to escape liability if they can show they have taken reasonable steps to prevent harassment, even if they did not do everything that possibly could be done.
This drafting change will not diminish an employer’s liability for sexual harassment from the current position, however, it will have an impact on the potential 25 percent uplift in compensation that may be awarded in sexual harassment claims. There is some potential that this may be revisited further during the next report stage, and we will update if any further significant changes are made.
Conclusion
The Worker Protection Bill has been significantly weakened by the removal of third-party liability and the watering down of the duty on employers to prevent sexual harassment. These changes are disappointing and could potentially leave many employees without adequate protection from harassment. If you are facing harassment in your workplace, and are unsure of where you stand regarding your rights as an employee, feel free to contact our solicitors for legal advice.
