Employment Rights Bill

Committee (4th Day)

Clause 19: Employers to take all reasonable steps to prevent sexual harassment

Amendment 82A

82A: Clause 19, page 42, line 10, at end insert— (b) after “prevent” insert “and address”;(c) after subsection (3) insert—“(4) Where an employee makes an allegation that sexual harassment has occurred in the course of their employment, an employer must take reasonable steps to investigate the allegation.(5) Any investigation conducted in accordance with subsection (4) must be proportionate to the severity of the allegation and, where an allegation relates to—(a) sexual assault, or(b) sexual harassment by a member of the senior management of the employer,the employer must commission an independent investigation.(6) During any investigation conducted under the terms of this section, an employer must take all reasonable steps to protect the wellbeing of the employee who has made the allegation.(7) Where an investigation under this section makes recommendations, an employer must comply with those recommendations.””

My Lords, I will speak to the amendment in my name, on which I am very grateful for the support of the noble Baroness, Lady Kramer. We will shortly debate several proposed amendments to Clause 22 that would require employers to prevent harassment in the workplace. Amendment 82A is also designed to require employers properly to address instances of sexual harassment if they occur at work.

As set out in my register of interests, I chair the investment industry’s Diversity Project. Through that role, I receive reports of poor behaviours submitted by workers in the sector through a confidential hotline that was set up after the CBI sexual harassment scandal. Sadly, from over 30 reports submitted—90% from women—it is clear that, if someone makes an allegation of sexual harassment at work, the investigation process that follows is often very difficult for them. It is typically conducted by people they work with, compounding the embarrassment and shame, which obviously may be misplaced, and making it exceptionally awkward, especially when, as is so often the case, their complaints concern someone more senior and powerful than them in the firm.

When working in an executive role, and being no expert in the field, I was once asked to oversee a process following a woman filing a complaint of quite serious sexual misconduct, which had been witnessed by several others, only for her to withdraw it midway through because she found the whole process of being investigated by her colleagues so excruciating. Even if a complainant decides to go through with the whole process, and even if the complaint is upheld, the pattern I see from so many of the reports submitted through the Diversity Project’s hotline is that the woman’s life, including her life at work, gets worse—much worse. She ends up leaving the firm, while the perpetrator’s career is often completely unscathed.

Amendment 82A calls for an independent investigation to be carried out by people qualified to investigate cases of sexual harassment and for all those involved in the case to be appropriately protected during the investigation. It would also require firms to adopt the independent reviewer’s recommendations, following their investigation. Your Lordships may be amazed—I hope you will be amazed—to learn that, in many cases today, even if a serious complaint is upheld and the firm decides to take action against the perpetrator, it often errs on the side of leniency, especially if the perpetrator is senior or a significant revenue generator. So, I am afraid, the abuses of power continue.

My Lords, I am a signatory to this excellent amendment, but I am also speaking as a winder from these Benches. I shall speak very briefly, because I will touch on many of the issues in a later group, but this is so important. I am so glad that the noble Baroness, Lady Morrissey, brought forward an amendment that focuses on the issue of investigation and action.

The noble Baroness has made the case powerfully, but for many people, it is such a shock to realise that it is the victim of sexual harassment—usually a woman, sometimes a man—who finds themselves, in effect, on trial. That is how the investigative process, when it happens, generally progresses. We all know that that is wrong and has to change.

If you talk to people who have been victims and ask them what they want most as a response to having spoken out, despite what they have gone through, the answer, again and again, is twofold. First, they never want this to happen to anybody else; secondly, they want investigation and action. The systems we have in place never focus on that issue and drive it as the primary response when somebody speaks out with a serious complaint of this nature; we will be talking later about complaints of another nature. I hope very much that people will become engaged with this issue, which has been so well represented here today.

My Lords, I commend my noble friend Lady Morrissey on moving this important amendment. She speaks from her own personal experience with wisdom and understanding, in particular on the whole issue of investigation and action. I also agree with the noble Baroness, Lady Kramer: the victim can so often find themselves on trial, and that is unacceptable.

So I have some sympathy with this amendment, in that it seeks a more proportionate approach to the matter than the Bill currently contains. We all agree that harassment, particularly when it is persistent—and, even worse, when it comes from a senior colleague—is a stain on society. Not only does it poison the workplace; it can ruin lives.

The amendment emphasises the need for employers to act reasonably, particularly in cases involving serious allegations such as sexual assault or harassment by senior management, and to protect the well-being of the employee involved.

Of course, many businesses already follow best practice, and we believe that proper measures to address the issue are critical in building safer and more respectful workplaces. Clause 20 as drafted also raises concerns about free expression, and it is our view that the amendment would be better placed elsewhere in the Bill, where it can be more thoroughly examined and discussed in its own context, without the issue of freedom of expression being engaged.

I want to emphasise from these Benches that we are committed to tackling sexual harassment in a meaningful way, but we also believe in ensuring that the right to free expression is carefully protected. We will listen very carefully to the Minister’s response to these concerns, and we will continue to advocate for a balanced approach that protects the dignity and safety of individuals while preserving fundamental rights.

My Lords, this has been a good introduction to the further debates we will have today on provisions in the Bill on harassment. I am grateful to the noble Baronesses, Lady Kramer and Lady Morrissey, for tabling Amendment 82A. Both made important points about investigation and action being crucial.

The Government agree that while the preventive duty places broad requirements on employers, it is important to ensure that specific steps are taken by employers to combat sexual harassment in the workplace. This is why, in addition to strengthening the preventive duty, we are introducing a delegated power, enabling us to specify steps that are to be regarded as reasonable for the purpose of meeting the obligations set out in the Equality Act 2010 to take all reasonable steps to prevent sexual harassment.

The regulations may also require an employer to have regard to specific matters when taking those steps. The regulations that the power will introduce will help clarify what is expected of employers, as well as guiding the EHRC or employment tribunals when taking enforcement action. These steps may include requirements on employers to undertake investigations following complaints and action recommendations, in addition to the requirements set out in the ACAS code of practice on disciplinary and grievance procedures. To better understand what steps are effective and proportionate, we have launched a call for evidence, and we will give responses careful consideration.

I have to say to the noble Baroness that it would be premature to introduce specific requirements in relation to investigations at this stage. I ask her to withdraw Amendment 82A, but I hope she will take on board that I am happy to continue discussions with her on these issues after the call for evidence concludes. I am sure we can reach an agreement going forward on that basis.

My Lords, I thank the noble Lord, Lord Hunt of Wirral, and the noble Baroness, Lady Kramer, for their thoughtful remarks, and in particular for highlighting the need for investigation and action to protect the victims.

I was slightly surprised at the grouping of this amendment, as it probably sits better among the other provisions and amendments designed to combat sexual harassment that we will be discussing later.

I am glad to hear from the Minister that a consultation is planned, which may include provisions requiring employers to conduct proper investigations. I look forward to hearing further about that. But for now, I beg leave to withdraw the amendment.

Amendment 82A withdrawn.

Clause 19 agreed.

Clause 20: Harassment by third parties

Amendment 83

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