This paper, published by the House of Commons Library, provides information on the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23, which was introduced in the House of Commons by Wera Hobhouse MP as a Private Member's Bill on 15 June 2022.
The paper lays out the background, content and commentary on the Bill.
Currently, section 40 of the Equality Act 2010 prohibits employers from harassing their staff and section 109 states that employers may be vicariously liable for harassment carried out by their employees, unless they can show they took “all reasonable steps” to prevent it.
However, employers are not currently liable where staff are harassed by third parties, since the 2013 repeal of subsections 40(2)-(4) of the 2010 Act. This was confirmed by the 2018 Court of Appeal ruling in Unite the Union v Nailard which found that, the absence of subsections 40(2)-(4), the Equality Act 2010 could no longer be treated as making employers liable for staff harassment by third parties.
In 2018 the House of Commons Women and Equalities Select Committee conducted an inquiry into Sexual harassment in the workplace, which criticised the gaps in, and enforcement of, protections from workplace harassment. The committee recommended that legislation be introduced to impose new employer liabilities for third party harassment and general duties to prevent harassment that could be enforceable by the Equality and Human Rights Commission (EHRC).
In 2019 the Government launched a consultation on sexual harassment in the workplace. Among other measures, this consultation sought feedback on the potential introduction of a new mandatory preventative duty “that requires employers to protect workers from harassment in the workplace” and on the introduction of new explicit employer liabilities for third party harassment.
The Government response to the consultation, published in July 2021, stated that the consultation findings were broadly supportive and committed to introduce the new measures, alongside a new EHRC statutory code of practice on workplace harassment.
The Worker Protection (Amendment of Equality Act 2010) Bill 2022-23, Bill 28 of the 2022-23 session, was listed for second reading on 9 September 2022.
What does the Bill do?
The Bill would create new legal liabilities for employers by treating an employer as harassing their employee if the employee is harassed in the course of their employment by third parties (such as customers or clients) and the employer fails “to take all reasonable steps to prevent the third party from doing so”.
The Bill would also create a new corresponding duty on employers to “take all reasonable steps to prevent sexual harassment” of their employees in the course of their employment. This duty would be enforced by the EHRC but employment tribunals would also be allowed to apply an uplift of up to 25% to employees’ compensation in sexual harassment cases where the employer had failed to uphold this duty.
House of Commons September 2022
Below for the full document: