My Lords, it is with pleasure that I bring this Bill before you today. Its full title is the “Worker Protection (Amendment of Equality Act 2010) Bill”—and it does what it says on the tin. The Bill is about protecting workers specifically from workplace harassment. It amends the Equality Act 2010 to strengthen the legislative protections against workplace harassment committed by third parties, to ultimately help create safer working environments fit for the way we consider workers should be treated today.
I give my heartfelt thanks to my honourable friend the Member for Bath, Wera Hobhouse, for introducing such important legislation and guiding it through the other place. Under her excellent leadership the Bill received strong support from all parties, and from the Government; I hope we can replicate that in this House today.
Before I set out further detail on the measures in the Bill, I first turn to the important context behind it. Five years ago, the #MeToo movement went viral, with over 12 million people around the world sharing the phrase “Me Too” on social media as a declaration of the sexual harassment or violence they had each experienced. This global phenomenon kickstarted much-needed conversations, not only on social media and in the press but in this House. The resulting parliamentary debates and inquiries shone a spotlight on the many appalling experiences of sexual and other harassment in UK workplaces, and it became obvious that this country needed to do better for working people.
The Government Equalities Office’s own survey on sexual harassment in the workplace in 2020 found that nearly a third of all employees surveyed had experienced some form of sexual harassment in their workplace or work-related environment in the previous 12 months alone. This is truly awful—and up with this we must not put.
Recent revelations and press stories have also exposed the vulnerability of workers in this country to workplace harassment by third parties such as customers and clients. For example, we all remember the furore following the Presidents Club charity dinner in 2018, at which female hostesses were allegedly told to wear “black, sexy” underwear and subsequently accused customers of sexual harassment. However, the Equality Act 2010 currently provides no protections for people in such a situation, as the alleged harassment was conducted by a third party rather than a fellow employee. This is the loophole we are trying to close in the Bill. And it is not just third-party sexual harassment that workers are at risk of: there is currently no redress for any third-party harassment under the Equality Act 2010. For example, retail staff who face racist abuse from customers, NHS workers who are subject to homophobic harassment by patients, and pub staff who are harassed by drunken customers in relation to their sex all currently have to rely on the good will of their employer in taking steps to protect them, rather than the law. In the course of doing their job, nobody should have to face that.
The Bill will introduce employer liability for the harassment of their employees by third parties in the course of their employment if the employer has failed to take all reasonable steps to prevent the harassment, and it will introduce a new legal duty requiring employers to take all reasonable steps to prevent their employees experiencing sexual harassment in the workplace. Whereas the employer duty will apply to sexual harassment only, I should be clear that the new third-party harassment protections will cover all types of harassment under the Equality Act 2010. Both new provisions will be enforceable in two ways: by individuals bringing claims to the employment tribunal, and by the Equality and Human Rights Commission undertaking strategic enforcement under their current statutory powers. A breach of the new employer duty may lead to an uplift in compensation awarded to a claimant by an employment tribunal of up to 25% in individual cases.
I understand that there were and are some concerns about the Bill’s interaction with free speech. In particular, some have suggested that, as a result of the Bill, employers will feel that they need to take extreme steps to avoid liability for workplace harassment, including by shutting down conversations and valid expressions of opinion between third parties such as customers in a pub. However, noble Lords will note that, on Report in the Commons, a government amendment introduced into the Bill Clause 1(3), and proposed subsections (1C) and (1D) under Clause 1(2), to clarify for employers and the employment tribunal that such steps are absolutely not required. The amendment was accepted by Members in the other place, and I hope it assuages any concerns noble Lords may have in this regard, although I know that the Minister will speak to this when she makes her remarks.
Furthermore, I would like to highlight that the Bill will not come into force until 12 months after Royal Assent, during which time the EHRC will be developing a new statutory code of practice to take account of the measures in the Bill. This code will be published and subject to a full consultation. In addition, the Government have committed to producing further guidance for employers on the practical steps that they can take to help prevent harassment in their workplaces. These documents will help to make sure that employers know what is expected of them under the Bill and the wider Equality Act 2010, support them and employment tribunals in its accurate implementation and, in doing so, protect against any unintended consequences.
I, my honourable friend the Member for Bath and government officials are already in conversation with industry bodies, including UK Hospitality, to this end. However, in the light of assurances sought from me, can the Minister assure the Fawcett Society and the #ThisIsNotWorking Alliance that the Government will closely monitor the impact of the government amendment and will take remedial action if it is found to be detrimentally interfering with the spirit of the wider reforms? The prize is to make third-party sexual harassment a thing of the past that does not belong in the culture of any workplace for any worker who has a customer-facing role.
To conclude, as my honourable friend the Member for Bath said in her own speech:
“We have turned a blind eye to workplace sexual harassment for far too long. This Bill will help to prevent harassment, protect victims and change the culture around victim blaming.”—[Official Report, Commons, 23/11/22; col. 6.]
I hope that my fellow noble Lords will help to ensure its safe passage, so that we can see it on the statute book as soon as possible. I beg to move.
My Lords, what was the freedom that we really felt the loss of during the pandemic and the associated lockdowns? I suggest that it was above all the freedom of association and assembly. We did not lose the right to speak out, to vote or to worship as we pleased, but we lost the right to congregate in whatever combinations pleased us. It seems to me that freedom of assembly rests fundamentally on freedom of contract. People should be allowed to come to freestanding agreements, one with another, without the state interpolating itself and declaring those agreements to be void.
This is a principle that, far from having been strengthened by our recent experience, appears to be abandoned the world over, in this country not least. We are subject, as so often, to trends from across the Atlantic. This is happening on both sides of the aisle, as they say on the other side.
There has always been a chunk of, let us say, the identitarian left that has subordinated the concept of free contract to the imperatives of identity politics, so all questions of freedom of association tend to be seen through the prism of whether some imaginary club would be allowed to exclude somebody on the grounds of ethnicity. I suppose it is conceivable that such a thing could happen today, but it seems an odd way to determine a general principle. Hard cases make bad law, and hard imaginary cases make particularly bad law.
However, I am more interested in the way the concept of free association and free contract is under attack from the right. I was very struck, for example, by the Governor of Florida, who is being talked up as a potential presidential candidate. He bases a lot of his campaign on having kept Florida open and having avoided the worst of the lockdowns, and yet, such is the nature of the culture war, he was passing laws in Florida outlawing vaccine mandates even on private property—and that seems to me a fundamentally illiberal thing to be doing.
For what it is worth, I thought vaccine mandates were difficult to justify. We now know that vaccines were very good at protecting you but actually very bad at preventing transmission and therefore the case for state intervention was weak. But be that as it may, surely an individual shopkeeper, cafe owner or whatever is allowed to require whatever terms he or she wants from his or her customers. If they say “You can’t come in here without wearing a mask” or indeed, “We won’t serve you without a tie” or “You can’t stay in this hotel with children or pets” or whatever, surely that should be fundamentally a question of freedom and property. Yet, like so many of these trends, it is crossing the Atlantic, and we now in this Bill are starting from the assumption that it is up to the Government to determine things.
I am going to leave the free-speech stuff as I see my noble friends Lord Strathcarron, Lord Leicester and Lord Moylan are speaking after me. I will leave it all to them. I have listened to my right honourable friend the Secretary of State in another place and she says that all these things have been anticipated, and I am sure she would agree with what the noble Baroness, Lady Burt of Solihull, said about the amendments to prevent conversations becoming a source of harassment. But I think there is a wider issue here. Should we not be starting from the proposition that, without a very good reason, it ought to be up to the employer and the employee to seek terms? I find it extraordinary, for example, that we are seriously discussing in this country at the moment whether there should be a statutory right to demand working from home or flexible work. You can do that now. What is to stop anyone saying to their employer, “These are the conditions I would like” and then negotiating them? The idea that we have to go to the Government and get a sort of licence to talk about these things strikes me as fundamentally incompatible with being an open society.
So I ask the Minister: are we certain that we have exhausted every other avenue before we reach for further legislation? It seems to me a fundamental principle of a free society that if I want to work for, let us say, my noble friend Lord Roberts of Belgravia, and he offers me a job, and I am happy with the terms of the contract and so is he, the Government should not come between us and declare our arrangement to be illegal. If, for example, I say, “D’you know, I don’t care about paid holiday, I’d rather have a lump sum”, that should be between us. Is that not fundamentally a question of what we mean by freedom and property?
So please will the Minister reassure us that we have exhausted our arsenal? We have perfectly good, old common-law provisions defending the individual against harassment. We have perfectly good laws against incitement. They do not cease to apply in the workplace. Are we certain that we need this additional legislation and that it is not the worst kind of declamatory legislation—virtue signalling by law—because those statutes invariably end up being the ones with the most unintended consequences?
My Lords, I declare two levels of interest, as a publisher and trustee of a national designated museum.
My objections to the Bill concern only the effect of Clause 1 on freedom of speech and the inadequacies of the government amendments. Everyone knows about the law of unintended consequences, but more relevant here would be another famous law: the law of dangerous assumptions. The assumptions here are threefold and concern the three categories involved: employers, employees and third parties. The Bill assumes that employers are overwhelmingly uncaring and unsympathetic towards their employees. It assumes that employees need to be treated like a protected species, unable to deal with the comings and goings of life in the workplace, and it assumes that third parties—the general public—are disproportionately likely to be foul-mouthed, insensitive and unwittingly offensive.
These unrealistic assumptions amount to a classic case of a solution looking for a problem. In this case, the solution is so draconian, and the size of the problem so minuscule, that the free-speech aspect of the Bill fails the first and most elementary parliamentary test: is it really necessary? The cumulative effect of these unrealistic assumptions can be seen in the Bill as it stands: to turn our fundamental right to freedom of speech into a management-style risk. These may or may not have been the intentions, but they will certainly be the consequences. I prefer the charitable interpretation that they are not intentional, and they just have not been thought through. Thankfully, that is the task of your Lordships’ House as we scrutinise what comes our way.
To take real-world examples of why this part of the Bill will not work in practice, I refer to my declared interests. I publish about 50 books a year and the marketing of each book requires that my team come into contact with the general public—third parties—either at a book launch or a literary festival, or sometimes both. To take the example of a book launch, this would be a private event with invitations sent out to between 50 and 100 guests and I would typically have three or four employees there. In order to be said to have taken “all reasonable steps”, I should on the invitation request that guests do not talk to staff about any subjects relating to sex, gender, race, religion, origins or any other sensitive matter—even if what one says is perfectly legal. I ask your Lordships, after seeing such an invitation—one that discourages any form of legal sociability—would you go to such a cold-water event? Would Waterstones, for example, risk an in-store book signing by JK Rowling or Helen Joyce on the offchance that one of the author’s fans might be wearing a T-shirt that says, “Woman Equals Adult Human Female”, knowing that an employee could sue for hurt feelings—real or vexatious? These are real issues facing real businesses. I suggest we are wading into very dangerous waters.
Less parochially than my own media world, do we really want to live in a society where intelligent people cannot talk to each other openly and legally, for fear of saying something unintentionally offensive in the ebb and flow of normal conversation? Do we really want these conversations to have any rules at all, beyond being legal, let alone to be governed by the ever-evolving vagaries of compliance culture, guarding against the tiny percent who might offend, probably accidentally.
The rules change all the time. If I said the words “woman” or “headquarters” at an Oxfam event and one of its employees took offence and complained, how much trouble would it be in? I note that it invented the offence only a few days ago. I hope we can agree that this is a nonsense that turns one of our most basic freedoms—freedom of speech—from a right to a risk.
The museum I mentioned is a charity, and we receive about 400,000 visitors a year—all totally random members of the public, with totally random views on any particular subject. We have a staff of about 100, many of whom will come into contact with the visitors—the so-called “third parties” mentioned in the Bill. It is quite possible that a few of our staff might be among those who are recreationally offended. If we are very unlucky, there might be one who is professionally offended, and there may be a few who are just easily offended. We just do not know, because we have never had to pry into the private prejudices of our staff before, as we will now have to do to protect ourselves, if these provisions stand.
On the other side of the gate, by no means can we expect all of the 400,000 visitors to be up to date with the current thing, to be courteous or even to be sober. Any encounters between our visitors and staff are totally outside our control. What one is saying to the other is almost certainly legal, and yet, under the terms of the Bill, we will be responsible for the outcomes. This is not only obviously unfair; it is unworkable and inevitably adds totally unnecessary costs for the charity.
On Report in the other place, the Government added last-minute free-speech protection amendments but, on close reading, all these conditions would have to apply in each occurrence, which, taken together, amounts to an extremely narrow and highly unlikely set of circumstances. As I said, this was all done in a last-minute rush and has not been properly thought through. This is easily remedied by adding the word “or” to them, which would at least mitigate some of these encroachments, although, at this stage, we are dealing with least-worst options, regrettably.
My Lords, I declare my tourism and leisure interests—within those businesses, I have probably 250 employees. I am extremely concerned about the Bill, which will have grave implications for freedom of speech as well as imposing huge compliance costs on Britain’s 1.5 million businesses. It is not an exaggeration to say that it is the most momentous and far-reaching piece of legislation currently before Parliament—yet it has received very little parliamentary scrutiny and provoked almost no debate in the public square. If the Bill were merely concerned with sexual harassment, I would have very few objections to it. Indeed, when it was flagged up to representatives in the hospitality sector, their understanding, without exception, was that the only form of third-party harassment that employers will be liable for if the Bill becomes law is sexual harassment. So there is a lack of understanding because of the lack of debate.
Clause 1 will create liability for third-party harassment of all kinds, not merely sexual harassment. Just as employers are currently liable if they have not taken all reasonable steps to prevent an employee overhearing another employee saying something offensive that relates to a protected characteristic, so they will now be liable if an employee overhears a member of the public saying something offensive. This should alarm any of us concerned with free speech, regulatory overreach and the spread of compliance culture.
If the Bill becomes law, businesses will treat their customers in the same way that they treat their employees, at least in some important aspects. Therefore, just like employees, customers are likely to be bound by formal and binding HR-style rules that govern how they interact with employees, so that the employer can demonstrate that it has taken “all reasonable steps” to prevent third-party harassment and so it can begin to manage the multifarious risks that arise from a legal prohibition against unintentional offence. Being told to use your staff’s preferred gender pronouns would be the tip of the iceberg.
Just earlier this week, I saw on Twitter—and I do not go on there that much these days—an unsavoury incident of a young trans woman filming herself shouting at a young server in a fast-food store. That server was doubtless themselves on the minimum wage. She was accusing him of misgendering her by calling her “sir.” The trans woman had evidently taken offence, but rather than quietly and politely correcting the young server that “he” was in fact a “she”, she was screaming blue murder and making quite a scene. The young worker was certainly harassed and could have a case against his employer, but how could the employer have guessed that this might happen? If they had guessed that this might be an eventuality, they could have instituted some gender recognition training, doubtless at a large cost to the company—and the quality of the training out there is arguable. Witness our own Valuing Everyone equally training here in this House, which was frankly patronising at best. That might have placated 48% of the 18-24 year-olds who believe that people should declare or display their pronouns, but not the remaining 52%, or the vast majority of older people who do not see the need or point of such virtue-signalling.
It is hard to conceive how any Government, least of all a Conservative one, should conclude that the compliance culture of HR departments, with their dogmatic rigidity, unreflective worship of fashionable orthodoxy and complete deadness to nuance and complexity, should be expanded beyond the workplace and into pubs, shops, theatres and sports grounds. Yet that is precisely what this Bill will do.
The Equality Act has chilled the atmosphere in workplaces up and down the country with people living in fear of saying the wrong thing and being reported to HR. That chill is now going to spread beyond the workplace into those places where people spend their leisure time. Is that really what the British people want—to live in a society where, if they are overheard telling a saucy joke or expressing an incorrect opinion, such as saying that they do not think trans women are women, they could be permanently banned from their favourite pub or restaurant? Hugh Osmond, the head of Punch Taverns, said:
“How could we stop a group of people coming into a pub and having an offensive chat in the comer? You may even need extra staff walking around the pub policing conversation. You wouldn’t find rules this strict in China or Russia”.
I question whether the UK’s under-threat pub sector will be able to shoulder the compliance costs and liability that Clause 1 imposes. An industry predominantly made up of small owner-operators, who do not have the resources to deal with this, is already under threat. One reason I voted to leave in the 2016 referendum was that, when we joined the EEC more than 50 years ago, Europe had 33% of world trade. When we voted to leave the EU, its share of trade had fallen to 17%. My take on this is that the EU is effectively legislating itself out of business. Extra-burdensome legislation is the last thing that this country needs as we struggle with the cost of living crisis, the mountain of debt built up as a result of our handling of the Covid pandemic, and inflation. This Bill needs a huge rethink.
My Lords, it pains me to find myself in disagreement with the noble Baroness, Lady Burt of Solihull, with whom I have worked on another cause in your Lordships’ House and for whom that I have the highest respect. I know she is motivated only by the highest considerations in bringing forward this Bill.
First, I shall address Clause 2, which I do not think has been mentioned so far. I wish to summarise and dispose of it, so to speak, but I want to come back to it later, which is why I think it is worth mentioning. Clause 2 imposes a duty on employers to prevent sexual harassment in the workplace. It is already the case that sexual harassment in the workplace can give rise to actions against employers, but there is no corresponding duty on their part to prevent it happening. This clause is aimed at filling that gap—uncontroversially, in my view—and that is absolutely fine.
The meat of the Bill is in Clause 1. Clause 1 is an attempt to respond to, in some ways, the events that occurred at the Presidents Club dinner some years ago, which, I say straight away, in my opinion were wholly reprehensible and should not have been allowed to happen, and the people involved should have some form of redress. I believe they do but not necessarily through the Equality Act as it stands, hence Clause 1 coming forward to address those issues.
I am grateful to the noble Baroness, Lady Burt, for arranging a meeting for me with the Government Equalities Office, which supports the Bill. I am grateful too for the written briefing that I have had from the Fawcett Society, in which it draws attention to the fact that 56% of women working in the hospitality sector experience sexual harassment. That is clearly unacceptable, but the first question to ask is: does Clause 1 do anything for them? What does it do for the people who served and were abused at the Presidents Club dinner? I think it probably does nothing for them at all, because it specifically says that it applies to employees.
I know nothing about the Presidents Club dinner and the particular arrangements on that occasion, but I know that, in general, it is the case that where large banquets and other events like that take place, even in hotels, the staff are normally supplied by a silver service agency, which does not employ them in the first place. I once had an office in the same corridor as a silver service agency—a very reputable firm that supplied staff to many events throughout London. The office was occupied only by the owner of the business and his secretary; there were no other employees. The staff who were supplied to wait at table at such events were very often students and people like that. They were part of a contact list, and the owner would assemble these people as occasion required. They were contract workers. Section 40 of the Equality Act defines employees, and generally speaking the status of employee arises for someone who has a contract of employment. However, a contract worker is not an employee, and they are dealt with in a separate part of the Equality Act.
So my first comment is that I do not think that Clause 1 would have done anything at all for staff working at the Presidents Club dinner, nor would it do anything for other people in similar circumstances, because large numbers of people in the hospitality sector are not in employed status but are in fact contract workers. It seems to me that the Bill does not even do what it intends and sets out to do.
Secondly—again taking the Presidents Club dinner as the starting point—the Bill chooses to go way beyond sexual harassment. Clause 2 is about sexual harassment but is not pertinent to the Presidents Club dinner. Clause 1 defines the harassment simply as “harassment”; it does not say “sexual harassment”. However, in Section 26 of the Equality Act harassment is defined, and it covers all relevant protected characteristics. So the Bill goes way beyond sexual harassment, as I think my noble friend Lord Strathcarron mentioned, and would concern religion and all the other protected characteristics in the Act. That seems to me to be an overreach and a misfiring of the Bill, which could be so much better targeted at the evil that it intends to address.
This brings us to the freedom of speech problems. Because the net has been cast so wide and covers all protected characteristics, the problems that my noble friend Lord Strathcarron instantiated in relation to his own experience as a modest publisher and a trustee of a museum immediately arise. In places with large numbers of persons having access, the policies that will need to be put in place will need to be very in-the-face of those who are likely to have access to such an event. I do not know what they will consist of, but—this is another important point—they all have to be reasonable steps.
The Fawcett Society brief says that employers will be required to take “reasonable steps”. That is not what the Bill says; it says, “all reasonable steps”. There is a world of difference in law, as I understand it, between “reasonable steps” and “all reasonable steps”. A small business, which might take the reasonable steps that it can see for itself but which fails to take other steps that larger businesses are taking—perhaps it is not even aware that those larger businesses are taking those steps—would be found to have failed to have taken all reasonable steps. At the very least, it should be required to do what the Fawcett Society thinks it will be doing and take “reasonable steps”. In my view, the word “all” needs to be removed.
I will now slightly repeat a point made by my noble friend Lord Strathcarron in coming to the question of the defence inserted by the Commons in new subsections (1C) and (1D). The meat is in new subsection (1C), where we find conditions which have to be met before that particular section can be prayed in aid by an employer. As drafted, all those conditions have to be met. I will not read them out because noble Lords have them in front of them and they are easily read, but each is quite onerous in itself, and cumulatively they will barely be available to employers when they come to an employment tribunal, should they do so. All this will do is result in more and more policies and more and more compliance culture as employers attempt to protect themselves from being sued, because their objective is to avoid ending up in an employment tribunal in the first place rather than to have a defence when they get there, which is completely understandable.
My final point is more of a query, because I am doing my very best on this. The noble Baroness, Lady Burt of Solihull, said that there would be a statutory code of conduct issued by the Equality and Human Rights Commission, which would show how the Bill would work. However, I cannot find it in the Bill; I cannot find a basis in the Bill for such a code of conduct. The notes produced by our own Library in the House of Lords say, as the noble Baroness said, that there will be a statutory code of conduct and that this is referred to in the Explanatory Notes. Look though I might in the Explanatory Notes, I cannot find that either. But then I note that the Library note puts this remark about a statutory code under its explication of Clause 2, so it possibly means that there will be a statutory code of conduct in relation to Clause 2. That would be absolutely fine—I have come back to Clause 2, as I said I would. I regard Clause 2 as uncontroversial, so supporting it with a statutory code of conduct seems to be a sensible step. But where is the evidence that there will be statutory code of conduct in relation to Clause 1, which is the one that is causing us so much difficulty?
Moreover, a point of considerable concern is that even if we find that there is to be such a statutory code of conduct—my noble friend the Minister might be able to give an assurance and explain what its statutory basis is—we are, in effect, outsourcing to the commission most of the substance of the operation of this clause that we are being asked to approve today. I think that is rather troublesome.
I do not say, as my noble friend did, that this piece of legislation has been rushed. I do not know whether it has been rushed, but it is ill thought out and misses the point. It does not do anything for the people it is trying to help, and it creates difficulties in other areas. My view is that it would be sensible if it were withdrawn and rethought; otherwise, it will have to be amended in Committee.
My Lords, I thank the noble Baroness, Lady Burt, for bringing this Private Member’s Bill to this place. I pay tribute to colleagues in the other place for their involvement, particularly in the debate that took place. I state from the outset our disappointment that the Bill is necessary at this moment in time. It reintroduces provisions made by the last Labour Government under the Equality Act 2010 that were removed by the coalition Government in 2013, who justified it by stating that the protections imposed an unnecessary burden on business. Surely, protecting people from harassment, especially in the workplace, should be seen never as a burden but as a responsibility. It is pleasing that, nine years later, there has been a change of heart by the Government, but concern remains about the length of time that has elapsed since 2019, when consultation on strengthening protections against harassment in the workplace was launched.
It is important to restate the scale of what we are facing. This needs to be listened to, heard and repeated on all occasions. Workplace sexual harassment is experienced by a minimum of 40% of women. Currently, the law on workplace sexual harassment is enforced only by individual women taking cases forward and there is no duty on employers to take preventive steps, but we know that this is not working. Some 79% of women do not report their experiences. The reforms in the Worker Protection (Amendment of Equality Act 2010) Bill ensure that more employees are protected and that more employers take responsible steps to prevent harassment.
At a minimum, as I said, 40% of women in the workforce experience sexual harassment over the course of their careers. Different women experience different rates and forms of harassment. Women and men of colour report even higher rates of sexual harassment. Seven in 10 disabled women and 68% of LGBTQ+ workers have experienced workplace harassment. Occupations where workers are exposed to male third parties—customers, clients or patients—also carry a higher risk for women who work in them. Some 56% of women working in the hospitality industry have experienced sexual harassment, as have 47% of those working in the services industries. In 2017 a survey showed that up to 18% of those who had experienced workplace sexual harassment said that the perpetrator was a client or customer.
Sexual harassment causes a variety of harms, including psychological, physical and economic. Morally and legally, employers should be required to take all reasonable steps to stop sexual harassment occurring. Disrespectful and abusive workplaces also have lower performance and productivity, and increased staff turnover.
What do we need to change? It is highlighted in the Bill. We have mentioned third-party harassment; we are trying to seek ways to make sure that staff members who face these problems have legal protection. The extent to which women who work in client-facing roles are unprotected by current laws was highlighted, as we heard, in the highly publicised Presidents Club scandal. The women who faced violations of their dignity in that case would not have had recourse to the law as it currently stands.
As I said, this was briefly on the statute book from 2010 to 2013 but was removed because the Government at the time believed that protection was present elsewhere in the law. However, following a subsequent court case, the Government now accept that there is a gap in the law. As I think we have heard, data from the House of Commons Library using the Government’s own survey indicates that 1.5 million people experience sexual harassment from a third party each year.
On the preventive duty, as I said, despite the protections in existing law, workplace sexual harassment is widespread. It is underreported for many reasons, including fear of repercussion, lack of awareness regarding rights, and fear of not being taken seriously. I am afraid to say that those fears are well founded. The EHRC found that in nearly half the cases where employees made a report, the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser.
Our current laws on sexual harassment mean that employers are not required to be proactive and take action to drive the necessary change. This also leaves managers not knowing how to respond appropriately. Only 45% of managers feel supported by their organisation when reports are made to them. Most importantly, it leaves women who have encountered traumatic experiences unsupported. We can and surely must do better.
The law needs to shift focus from redress to prevention. Currently, the question of whether employers have taken adequate steps to prevent harassment arises as a defence only if an incident of sexual harassment has already occurred. This of course means that employers are not required to take actions that prevent sexual harassment occurring. In 2018 the EHRC found that only a minority of employers had effective processes to prevent and address sexual harassment.
Over the last few years we have seen the Government make various commitments to take action. In 2021 the Government’s response to a 2019 consultation on workplace sexual harassment led them to make commitments to introduce a new preventive duty for employers, introduce more explicit protection from harassment by third parties, and consider extending time limits for Equality Act claims in the employment tribunal from three to six months. Do those commitments remain government policy? It was perplexing for us all, having had these commitments, to find no reference to them in the Queen’s Speech last year. We hope that the Bill is the mechanism through which these changes can be enacted on to the statute book.
So we are looking for answers to the issue of employer liability for third-party sexual harassment and the standalone preventive duty. As we heard earlier, at Third Reading in the other place, the Government amended the Bill so that employers will not be liable for workplace harassment, other than sexual harassment, where it arises as a result of a protected conversation. It is questionable whether this amendment is necessary. However, the implementation of a preventive duty and third-party liability is indeed a big step forward and consequently, we continue to support the Bill.
I have some questions for the Minister today. I support the noble Baroness, Lady Burt, in her request for information on how the amendment’s impact will be monitored and what remedial action will be taken if it does indeed interfere detrimentally with the spirit of the wider reforms. The Government have indicated their commitment to the reforms, but are they still committed to extending from three months to six months the time limit for bringing to the employment tribunal all claims made under the Equality Act? Many organisations support this extension, as the current three-month limit means that pregnant women have to bring a case in the first few months after birth, and sexual harassment victims when they are still incredibly traumatised.
It goes without saying that I look forward to the Minister’s response to the matters raised today. I particularly look forward to hearing that the Government are committed to supporting the Bill.
My Lords, I congratulate the noble Baroness, Lady Burt of Solihull, on leading this important debate and I compliment her on her excellent introduction to the Bill. Similarly, I pay tribute to the honourable Member for Bath, who introduced this Bill in the other place, where it enjoyed cross-party support and the full support of the Government. I also thank noble Lords who have contributed to today’s Second Reading debate. It is with great pleasure that I reaffirm the Government’s support for the Bill.
As the House is well aware, the harassment of workers remains all too common. The Government’s own experimental survey uncovered completely unacceptable levels of sexual harassment, and the recent review of the Metropolitan Police by the noble Baroness, Lady Casey, shows how harassment and discrimination can be baked into a system. The testimony and the data make it clear that mistreatment of women is a feature of the toxic culture that we have seen revealed in her report. I thank the noble Baroness, Lady Blake of Leeds, for giving us more information on this issue and bringing it into sharp relief today.
The noble Baroness, Lady Burt, set out the details of the Bill’s two main measures, and I want to take the opportunity to reiterate their importance. The third-party harassment protection and employer duty represent a significant strengthening of protections for those affected by harassment at work. What is more, they will not only raise awareness of the nature of harassment but motivate employers to prioritise the prevention of workplace harassment and, ultimately, improve workplace practices and culture.
I will touch on the Bill’s interaction with free speech, and the government amendment made on Report in the other place. Let me be clear: we have listened not just here to Members today but to those outside this House. We understand that there are real concerns about constraints on free speech and how our laws can have a chilling effect on the ability of people to speak their minds and voice their opinions.
The Bill is about the harassment of workers, and it is right, particularly in light of the review by the noble Baroness, Lady Casey, that employers take their responsibilities seriously and crack down on harassment and discrimination. Those who seek to harass people at work will not be tolerated.
However, freedom of speech is a vital pillar of our society, and I reassure all noble Lords that the Bill will not inhibit free speech. As well as casual conversations, no one wants to prevent rigorous discussion or intellectual debate, which are crucial to progress in this country. It is for these reasons that we amended Clause 1 to make clear that, while employers will be expected to take action against workplace harassment under the Bill, this should fall short of prohibiting the appropriate conversations of others. That was never the intention of the Bill, and it is now clear on the face of it. We have also specified the conditions which must all be met in order to trigger the amendment, to provide full clarity.
Some of the concerns expressed are about the “what if” questions. It is right that we test and rigorously examine the scope of the Bill, but legislators can go only so far in predicting and accounting for every scenario. The amendment we have put in place signals to employers where their ceiling of action should be, and the Government trust that they are best placed to assess how to implement the law according to the business within which they operate.
The implementation of the Bill will be supported by guidance from the Government and the Equality and Human Rights Commission. The Government have committed to support the EHRC in developing a statutory code of practice on workplace harassment, which will be published as the measures in the Bill come into force, one year after Royal Assent.
We have had assurances from the EHRC that it agrees that the measures in the Bill are a necessary and proportionate means of preventing unlawful harassment and are compatible with freedom of expression. The EHRC has also reassured us that its new statutory code of practice on workplace harassment will guide tribunals to consider the reasonable foreseeability of harassment occurring when determining employer liability.
The EHRC is rightly independent of government and, as such, it is up to it to determine the contents of the code, following consultation. The code will then be considered by the Secretary of State and, if approved, laid before Parliament. But, in the first instance, we will encourage the EHRC to ensure it clarifies the following points. Here I reassure the noble Lord, Lord Moylan, that it will include Clause 1 as well as Clause 2.
First, while employers will be expected to take action against workplace harassment under the Bill, this action should fall short of prohibiting the appropriate conversations of others. Secondly, employers will be expected to take only steps that are considered reasonable in their specific circumstances, meaning that the implementation of preventive measures should take into account known risk factors, as well as the size of the organisation and the resources of employers. Lastly, employers are not expected to take extreme or unreasonable steps to prevent the harassment of their employees, including the cancellation or refusal of bookings for lawful events, or hiring “banter bouncers” to actively police conversations in their establishments.
We will also encourage the EHRC to provide examples which are industry specific, such as guidance for venues that host speakers and entertainers, or workplaces which require frequent interaction with third parties.
What is more, the Government will also publish detailed guidance for employers about the kinds of steps they should be taking to prevent harassment in the workplace. This will improve employers’ ability to engage with their existing duties in this area, and help them to ensure that they have taken “all reasonable steps” to prevent harassment. I hope that that answers the points made by the noble Baronesses, Lady Blake and Lady Burt of Solihull. I can provide assurances today that the equality hub will monitor the impact of the Bill, including the amendment, to ensure it is accurately interpreted and implemented according to the spirit of these reforms. The Government will formally review the measures after five years—that was another issue that both noble Baronesses brought up.
Relatedly, I understand that concerns have also been raised about the requirement on employers to take “all reasonable steps” to prevent workplace harassment—this was brought up by a number of noble Lords. It is important to note that the concept of “all reasonable steps” has been in the Equality Act since its inception in the context of employers’ liability, and that it is well understood by employers and employment tribunals; this is nothing new. What is “reasonable” in any particular context is a question of fact for the tribunal. Factors including the work environment, the size of the organisation and known risk factors, as well as cost and practicality, are all relevant considerations.
What constitutes “all reasonable steps” is not currently defined in law and we do not intend to do so, as this would remove the flexibility to take a proportional approach based on the individual circumstances of the workplace. The alternative would be to set out a list of “all reasonable steps” by workplace context, which would mean creating an extremely complex system that might still not account for every workplace context and certainly would not be exhaustive. While it would therefore be undesirable to define “all reasonable steps”, the Bill as amended now makes clear to employers that, in certain cases, this should not include shutting down conversations or preventing the expression of opinion—in other words, setting a ceiling on what can be considered a “reasonable step” for an employer to take to avoid legal liability for workplace harassment. Both the EHRC’s code of practice and the Government’s guidance will provide further clarity for employers as to what “all reasonable steps” means for them, in addition to the range of existing guidance which is already available for employers in this area, including the EHRC’s current employment code of practice.
I now turn to a few other things—well, more than a few, I think—brought up by noble Lords. My noble friend Lord Hannan asked whether we had exhausted non-legislative options to tackle workplace harassment. There is already a wide range of guidance available on workplace harassment, such as the EHRC’s employment code of practice I just mentioned. However, as we have heard today, workplace harassment remains a persistent problem in this country, as the noble Baroness, Lady Burt, outlined. In particular, the Presidents Club scandal that has been mentioned more than once shows exactly where this country’s legislation fails to protect vulnerable workers: without the Bill, we know that workers have no protection from third-party harassment, other than the good will of their employer, and this is just not right.
The noble Earl, Lord Leicester, and the noble Lords, Lord Strathcarron and Lord Moylan, brought up the issue of free speech. I make it clear that the Government appreciate the concerns about free speech. It is a cornerstone of British values and it will only be strengthened, in my opinion, by the Bill. The Bill, though, concerns an employer’s liability only for workplace harassment, not for trivial upset. With all cases of harassment under the Equality Act 2010, courts and tribunals will be required to balance competing rights on the facts of that particular case, including the rights of freedom of expression and of academic freedom, against the right not to be offended, in deciding whether a person has been harassed.
My noble friend Lord Leicester brought up the issue of burden to businesses. We do not believe that compliance with the Bill needs to be onerous. I should be clear that there is no expectation that employers will be able to stop all harassment ever occurring in their organisation—that would be impossible. Instead, the Bill requires employers to take “all reasonable steps” to try to prevent the harassment happening in the first place.
My noble friends Lord Strathcarron and Lord Leicester asked for an example of how the amendment made to Clause 1 in the other place balances free speech and workplace harassment. It may be that the employment tribunal finds that harassment related to race has occurred where an employee overhears a conversation between two other employees concerning the treatment of immigrants. The employer can show that it has taken all reasonable steps to prevent the harassment by having in place an effective anti-harassment policy. The effect of the amendment is that the policy does not need to include the prohibition of conversations about controversial topics in order for an employer to avoid liability. It is about balance and, from the debate so far, I think noble Lords are misunderstanding the balance that the Government want to achieve in this.
My noble friend Lord Leicester brought up the issue of employers being held for employee hypersensitivity. I can understand the concerns that this Bill will lead to employers being held accountable for merely minor offensive comments made in their workplace, or facing excessive employment tribunal claims from hypersensitive employees. I strongly reassure noble Lords that we are not aware of any evidence that this is the case under the existing employer liability for employee-on-employee harassment, and there is no indication that this will occur as a result of this Bill.
My noble friend Lord Leicester also brought up the burden on the hospitality industry. The Government are clear that compliance with the Bill does not need to be onerous, as I have said. Under current legislation, employers are already expected to take all reasonable steps to prevent workplace harassment to avoid legal liability. Employers in the hospitality industry will be experienced in dealing with incidents of harassment carried out by customers and making those judgment calls in their workplace about the most appropriate steps to take to prevent the harassment and abuse of their employees.
My noble friends Lord Leicester and Lord Moylan brought up liability for third parties, saying that it should arise only in relation to sexual harassment. It has never been the case that liability for third-party harassment applied only in relation to sexual harassment. The third-party harassment provisions that were originally in the Equality Act applied to all forms of harassment. When considering the reinstatement of these provisions in their 2019 consultation, the Government made it clear that the options discussed would apply equally to all forms of harassment under the Equality Act 2010, not just sexual harassment. The fact that the general theme of the consultation was about sexual harassment will not detract from that.
My noble friend Lord Moylan asked about subcontractors, particularly in relation to the Presidents Club. I am sure that the Bill does not extend to the genuinely self-employed, as they do not fall within the definition of “employment” under the Act, but the Bill therefore covers subcontractors and agency workers. The people employed for the Presidents Club were probably in that group of people, but we would have to check.
Without referring specifically to the Presidents Club dinner, because none of us knows the actual facts of that, I ask in general terms whether, for a large banquet served by persons supplied by a silver service, the liable employer—given that they are not employed—would be the silver service company, the organisers of the banquet or indeed the owners of the premises, which might be an hotel, in which the banquet took place.
I will not answer my noble friend, as I do not have a degree in employment law, but I will ensure that I find the answer for him and put a copy in the Library.
My noble friend Lord Moylan also asked why there are so many conditions in the Commons amendment. I understand that a number of conditions all need to be met for the amendment introduced in the other place to be triggered.
I think that is everything. If I have not answered everyone’s questions, I will look in Hansard and make sure that I get a written answer to everyone. At the same time, if noble Lords still have concerns about the Bill and its contents, I would be more than happy to discuss it further with officials. I am happy for anyone to get in touch with me—we will put something in the diary.
I end by underscoring the cross-party support that the Bill enjoyed in the other place, where speakers from all walks of life appealed to this House to maintain that collaborative spirit. So it is with particular determination that I now commend the Bill to the House. The Government are proud to back it and wish it safe passage through its remaining stages.
Wow—this has been quite a discussion. I commend everyone who contributed on the Bill; it shows the degree of concern and even passion that people feel, not only on the part of workers who may be subject to harassment but on the very important issue of free speech, which I will come to in a second.
I thank again my honourable friend the Member for Bath for leading this important legislation up to this point. My gratitude goes to the members of the Equality Hub for their tireless work in developing the policy, and to the Fawcett Society for its advocacy, which ultimately got the Bill to where it is today. My gratitude also goes to the Minister, for reiterating the Government’s support for these new measures, which I know she agrees will bring a real positive change to the lives of many people, particularly the most vulnerable, across all industries.
I will just pick up on a couple of points. The noble Lord, Lord Hannan, was talking about a contract and how you can disagree, make the arrangements and make the changes according to two parties. The problem is that those two parties need to be equal. In my view, the problem here is that people who serve others are not necessarily in an equal situation. That is why it is so important. So many of the people who serve others and carry on these roles are in a lesser position, and they get abused; they get abused a lot. That is what we are seeking to change.
So, while no one would speak more highly of freedom of speech than myself, there is an element of reasonableness that needs to come down when we are discussing these matters. At the bottom of it, the people who are subject to harassment, some of them every day of their lives, do not deserve that. They serve you and me as well, and they deserve to have reasonable systems in place. Nobody is going to intervene and stop a conversation from happening because somebody might get offended. I think the definition of harassment and I take my life into my hands here—is a legal term and for sure I am very far from a legal expert. But we are talking about real distress caused to people who are in that customer-facing role. This is what we are seeking to do today: to at least enable employers to have procedures in place so that people can come to work feeling confident that, even if an incident happens, they will know what to do. They will know that their boss is going to be able to deal with the situation on their behalf. Employers need to think about that. It is a cultural issue that needs to be introduced in so many companies and businesses, for the good of the business but also for the good of the employee themselves.
So I hope that the Minister has managed to assuage some of noble Lords’ concerns. If I can help in any way, I would be more than happy to do so. I therefore invite noble Lords to support the Second Reading of this Bill.
Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 2.07 pm.