Worker Protection (Amendment of Equality Act 2010) Bill

Whether sexual harassment is by a third party or not, employers have not done enough to prevent and punish it. The Equality and Human Rights Commission found that in nearly half of cases reported, the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser. It seems that the risks of reporting sexual harassment can outweigh the merits. That is disgraceful in modern Britain. The problem is that the current laws on sexual harassment mean that employers often adopt individual responses to institutional problems. That creates space for employers to minimise what is going on and leads to confusion about how to respond appropriately. Statistics show that only 45% of managers felt supported by their organisation when reports were made to them. Ultimately, the current laws leave people who have encountered traumatic experiences unsupported. We can and must do better.

The Government agree that more needs to be done to tackle sexual harassment in the workplace. In their 2021 response to a consultation on workplace sexual harassment, the Government committed to introduce a new preventative duty for employers, to provide more explicit protections from harassment by third parties, and to support the EHRC to develop a new statutory code of practice on workplace harassments. For things to improve, we need a shift in focus from redress to prevention. Currently the question of whether employers have taken adequate steps to prevent sexual harassment arises only as a defence if an incident of sexual harassment has already occurred. That means that employers are not required to take actions that prevent sexual harassment. Indeed, the EHRC found in 2018 that only a minority of employers had effective processes in place to prevent and address sexual harassment.

The Bill would provide the shift in focus that is so desperately needed. Clause 2 would ensure that employers prioritise prevention by imposing a new duty on them to take “all reasonable steps” to prevent their employees from experiencing workplace sexual harassment. That will not require employers to do anything substantially more than what they currently must do to avoid legal liability for acts of harassment carried out by their employees, but it would mean that employers could potentially be further held to account if they have failed to take those actions, first by an uplift in the compensation awarded at an employment tribunal, and secondly through the EHRC’s strategic enforcement. That will, I hope, push employers to prioritise prevention of sexual harassment, including through improving workplace practices and culture.

The new duty would operate through dual enforcement. The EHRC may take enforcement action for a breach or suspected breach of the duty under its strategic enforcement policy. This means that women would be able to inform the Equality and Human Rights Commission of any concerns without necessarily having to take forward legal action against their employer. In addition, the employer’s duty will be enforceable by the employment tribunal in individual cases. Where the employment tribunal has found in favour of an individual claim of sexual harassment and has ordered compensation to be paid, the tribunal will examine whether and to what extent the duty has been breached.

Where a breach is found, tribunal judges will have the power to order an uplift of up to 25% of the compensation awarded. The Bill will also introduce explicit protections against third-party harassment in the workplace. Clause 1 would make employers liable for the harassment of their staff by third parties, such as customers and clients, where they have failed to take all responsible steps to prevent such harassment from happening. These protections will apply to all acts of third-party harassment in the workplace, including racial as well as sexual harassment.

Once again, there will be a system of dual enforcement. Individuals will be able to bring claims to an employment tribunal in the usual way for work-related cases under the Equality Act 2010. The Equality and Human Rights Commission will have strategic enforcement powers. Compensation will be assessed in the usual way for Equality Act claims, with the same uplift outlined earlier available in cases where a breach of duty has also been established following a successful third-party sexual harassment case.

A claim for third-party harassment could be brought after a single incident of harassment. This replaces the previous “three strikes” formulation, whereby employers needed to know of two previous incidents of third-party harassment before they could be considered liable, but employers will be able to rely on the “all reasonable steps” defence in the usual way. To ensure that employers are as informed as possible about the proposed changes, which will come into force 12 months after Royal Assent, the Government Equalities Office will support the Equality and Human Rights Commission in creating a statutory code of practice on sexual harassment and harassment in the workplace. This will be based on the technical guidance that the Equality and Human Rights Commission published in 2020 and will be introduced as the new legislation comes into force.

The Equality and Human Rights Commission will have a duty to consult on this code of practice in advance. In the meantime, the Government Equalities Office has produced guidance for employers on how to prevent sexual harassment, which I understand it is looking to publish in due course.

Let me finish by turning away from the technical details of the Bill, and return to the wider set of circumstances that makes it important for us to pass this legislation. An unacceptable number of nurses, paramedics, bar staff, people who were key workers during the pandemic and everyone in between are being subject to a form of harassment that causes a variety of harms, including psychological, physical and economic harm. Employers should be required both morally and legally to take all reasonable steps to stop sexual harassment from occurring. The fact that the law of this country does not compel them to do so is a concern.

For too long the onus for challenging sexual harassment has been on individuals. Our current laws mean that employers do not know how to respond to cases appropriately, which leaves people who have encountered traumatic experiences unsupported. Introducing a standalone preventive duty for employers will shift the responsibility from individuals to the institution. It will prevent harassment and protect victims, and it will drive a change in the culture around victim blaming. I urge that this House supports my Bill, enshrining in law historic measures to protect employees from harassment in the workplace.

I thank everybody across the House who has given support to this Bill and already committed to serving on the Committee that will ensure that the Bill progresses through the House.

We have listened carefully, and I am extremely keen to see the Bill progress. My hon. Friend the Member for Harrow East (Bob Blackman) was correct to highlight that it is not just women who are affected, and we need to protect employees from predators. I thank the hon. Member for Bath for promoting this Bill, which is an important step change in the protections available against workplace harassment. As the debate on the future workplace proceeds post pandemic, the Government are committed to ensuring that everyone feels safe and supported to thrive. We strongly support the Bill.