The Worker Protection Bill - what protection does it offer?

Author: Darren Newman

The Worker Protection (Amendment of Equality Act) Bill is almost ready to become law - but it is a shadow of its former self, says consultant editor Darren Newman. 

As it started out, the Bill would have made employers liable for acts of harassment directed against its employees by third parties such as customers, clients and contractors. But those measures were dropped during the House of Lords committee stage.

So what is left? What the Bill now does is create a duty on employers to take reasonable steps to prevent the sexual harassment of its employees. I'm not entirely sure that it is worth the effort.

Defining sexual harassment

First, we need to be clear about what sexual harassment is. Harassment is defined in s.26 of the Equality Act 2010 and covers unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Sexual harassment is unwanted conduct of a sexual nature that has that effect.

Sexual harassment is not just harassment where the relevant protected characteristic is sex. If an employee behaves in a rude and aggressive way to a female colleague out of straightforward misogyny, that will be harassment - but not sexual harassment, because the nature of the conduct complained of is not in itself sexual. The duty set out in the Bill applies only to the prevention of unwanted conduct of a sexual nature and does not cover harassment more generally.

While the Bill no longer makes employers liable for harassment carried out by third parties, the preventative duty applies to any sexual harassment of an employee suffered in the course of their employment - whoever the perpetrator may be. An employer will therefore have a duty to take reasonable steps to prevent their staff from being sexually harassed by clients, customers and members of the public, even though the employer will not be liable for that harassment should it occur.

The role of the EHRC

There are two ways in which the new duty can be enforced. The first is via the Equality and Human Rights Commission (EHRC) using its statutory enforcement powers. If it believes that an employer is not complying with its duty it can issue an unlawful act notice requiring the employer to take specific steps to bring it into line. If the employer fails to do so, then that can lead to a fine.

In the real world, the EHRC's enforcement powers are rarely if ever used. It simply doesn't have the resources to police the steps that employers are taking to prevent sexual harassment. Instead it will have to rely on complaints from employees and unions or cases that give rise to extensive publicity. This means that large or high-profile employers are much more likely to be placed under scrutiny - though many more will want to do the right thing and act in accordance with any guidance the EHRC produces.

The importance of the uplift

Good employers that are keen to comply with the duties placed upon them are entitled to be frustrated when new laws are not accompanied by an effective mechanism for enforcement. It allows them to be undercut by less responsible employers that anticipate that they will be able to ignore their legal obligations with little chance of being held to account. In the case of this duty, however, there is one other legal consequence of non-compliance that may provide more of an incentive to comply.

This is a provision that allows the employment tribunal to increase the award of compensation that it makes when an employee successfully claims sexual harassment by as much as 25%. Given that there is no cap on compensation in discrimination claims, this is a potentially significant measure as we can expect the uplift to be awarded in most if not all cases. This is because the employer has a defence to a claim if it can show that it took "all reasonable steps" to prevent the conduct in question. Any employer that is held liable for sexual harassment therefore will necessarily have failed to take all reasonable steps to prevent sexual harassment. The uplift will be available if the tribunal finds that the employer failed to take "reasonable steps" (the Bill initially referred to "all" reasonable steps but that word was taken out by the House of Lords). There may be cases where the tribunal finds that, while the employer did not take "all reasonable steps", it did take "reasonable steps" and so no increase in compensation should be awarded. I suspect, however, that this will not be a distinction that tribunals will be keen to draw.

The #MeToo context

What this means is that claims of sexual harassment will often attract higher levels of compensation than other forms of harassment based on a protected characteristic. There is no reason for this other than the fact that the duty to prevent sexual harassment was initially suggested in the context of the #MeToo movement and forms part of the Government's strategy for dealing with violence against women and girls.

It makes sense at a policy level to consider specific measures to deal with a specific problem like sexual harassment, but when those measures are translated into legislation it does seem rather odd that sexual harassment will attract higher compensation than equally serious instances of, for example, racial harassment. Nevertheless, that is the position created by this Bill.

Next steps for employers

So what should employers do once this Bill becomes law? They will have plenty of time to think about it, because its provisions do not become effective until one year after the Bill is given Royal Assent. Most large employers will already have a strategy for dealing with harassment in the workplace. They will have developed a harassment policy and will seek to ensure that complaints are dealt with promptly and effectively and that appropriate training is given to staff so that they understand what behaviour will be regarded as inappropriate.

Those elements will also need to be present in any strategy for preventing sexual harassment - with the added requirement to consider how to prevent sexual harassment from third parties. While there is a great deal of overlap between preventing sexual harassment and preventing harassment in general, it would probably be a good idea to develop a separate policy on sexual harassment so that the steps that the employer is taking in pursuance of its duty are clear and unambiguous.

This is unlikely to be the final word

By the time the duty comes into force we will almost certainly have had a general election and may well have seen a change in government. It is worth noting that the Labour Party's policy paper on employment law - "A New Deal for Working People" - says that Labour would "require employers to create and maintain workplaces and working conditions free from harassment, including by third parties". I doubt that this Bill alone could be seen as having fulfilled that pledge. I suspect that we may see further amendments to the law on harassment in future years.