Third party harassment protection removed from Bill

In December 2022, we reported on the introduction of the Worker Protection (Amendment of Equality Act 2010) Bill (‘the Bill’) which was intended to create employer’s liability for third party harassment and introduce a duty on employers to take ‘all reasonable steps’ to prevent sexual harassment of their employees.  These obligations have been diluted by the House of Lords following concerns in relation to the impact that the provisions could have on free speech and the regulatory burden on employers.

On 14 July 2023, the House of Lords made two amendments to the Bill:

• to remove the clause which made employers liable for third-party harassment of employees in the course of employment; and
• to amend clause 2 of the Bill so that employers will be required to take ‘reasonable steps’ rather than ‘all reasonable steps’ to protect employees from sexual harassment in the course of employment.

In relation to third party harassment, the position under the Equality Act 2010 (‘the Act’) will remain as it has been since the removal of the third-party harassment protections in 2013.  In relation to sexual harassment, Baroness Noakes confirmed that the amendments to the Bill will not water down the existing provisions of the Act, under which employers are responsible for any act of harassment committed by employees unless they have taken ‘all reasonable steps’ to prevent it. The Bill will instead create a different ‘reasonable steps’ test for a new duty on employers to prevent sexual harassment.  Employees will not be able to bring a claim to assert that employers have breached this duty but it will be enforceable by the Equality and Human Rights Commission where an employment tribunal has upheld such a breach.  In those circumstances, an employment tribunal will be able to uplift compensation by up to 25% of the original amount awarded.

This has led to some ‘scratching of heads’ by employment lawyers and we will provide more clarity on how this will work as the Bill passes through Parliament.

You can read our previous article in relation to the Bill here:  Is employer liability for sexual harassment of employees by a third party set to return?