Worker Protection (Amendment of Equality Act 2010) Bill receives Royal Assent
Legal Development 03 November 2023 03 November 2023
The Worker Protection (Amendment of Equality Act 2010) Bill received Royal Assent on 26th October 2023 and will come into force in October 2024. The Act extends to England, Wales and Scotland.
The Bill was introduced to make provision in relation to the duties of employers and the protection of workers under the Equality Act 2010. It was intended to strengthen the protections available to employees at work from harassment by other employees and, critically, from third parties, such as suppliers, clients and customers. During the Bill’s second reading in 2022, Wera Hobhouse, one of the Bill’s sponsors, referred to a 2017 survey which “suggested that 18% of those who had experienced workplace sexual harassment said that the perpetrators were clients or customers.” The third party harassment duty had originally been part of the Equality Act 2010 but was amended out of the Equality Act in 2013.
As the Bill passed through Parliament there has been criticism that it has been watered down. The third party harassment element was dropped. The strictness of the employer duty has also been amended, from having originally required the taking of "all reasonable steps" to prevent sexual harassment to the current drafting to the effect that “An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.” The protection for employees is therefore weakened from that which was originally envisaged. It does not “introduce explicit protections against third-party harassment in the workplace” as was the original intention.
During the committee stage in July 2023 Lord Jackson commented that he was “concerned particularly about Clause 1 because I thought that it had a pernicious and consequential chilling effect on free speech. Of course, we all deprecate incivility, discrimination and sexual and other harassment, but this was not the right vehicle for addressing those very significant societal issues.”
After the Lords’ amendments were considered on 20th October 2023, Wera Hobhouse stated “it was very important to be pragmatic; otherwise, the whole Bill would have fallen.” Indeed, in April 2023 there was concern that the Bill would not come to fruition; it was reported that over 40 amendments had been added by Tory backbench peers, meaning that the Bill would time out.
A Bullying and Respect at Work Bill was also introduced, however this Bill will make no further progress as the 2022-2023 session of Parliament has prorogued. The Bill was to provide for a statutory definition of bullying at work; to make provision relating to bullying at work, including to enable claims relating to workplace bullying to be considered by an employment tribunal.
The Bills were introduced as part of a wider social intolerance towards inappropriate behaviour and improvement of dignity and respect in the workplace. This follows a heightened awareness of, and hardening attitudes towards, inappropriate conduct at work as epitomised by the #MeToo movement and other high profile sexual harassment scandals.
A TUC survey reports that almost two in three young women have experienced sexual harassment, bullying or verbal abuse at work. Reports to employers of sexual harassment occurring remain low due to factors including not being believed or taken seriously, reporting it would impact negatively on relationships at work or on career prospects.
How will this affect insurers and employers?
It will remain to be seen whether the Worker Protection (Amendment of Equality Act 2010) Act 2023, in its watered-down form, will generate more claims. It does place a duty on employers to take reasonable steps to prevent sexual harassment and therefore represents a need for a more proactive approach. Organisations will need to factor in any additional liability and reputational risk and look closely at existing Dignity at Work and harassment policies, as well as awareness within their workforce in relation to these policies. In appropriate cases there may be a need for internal or independent investigations where wider workplace culture issues are identified, and demonstrable action based on any findings. The Equality and Human Rights Commission intends to run a consultation process with a view to the issue of guidance for employers on compliance with the new obligations.
Many claims relating to these issues are started in the Employment Tribunal (ET). The ET has jurisdiction to make awards of personal injury damages, where injury (usually psychiatric injury relating to the stress of the type of situations which can arise) arises from discrimination or harassment based on a protected characteristic. The definition and threshold for harassment under the Equality Act differ from those applicable to harassment under the Protection from Harassment Act. It is important that insurers are aware that where an ET makes a personal injury award, this is a legal liability to pay compensation for bodily injury as defined in an employer liability (EL) policy. Whilst EL policies are not usually involved in ET matters which have traditionally involved employment rights issues, the ability of an ET to make an award of personal injury damages can bring EL policies into play in a jurisdiction with which EL insurers are generally not accustomed. That can present challenges for EL insurers and their policyholders because ETs may take a different and more streamlined approach to expert medical evidence and assessment of causation than insurers may be used to when dealing with complex injury claims in the civil courts. In addition, most ET claims will involve other losses which are not covered under an EL policy. This makes handling complex and nuanced and requires close liaison and co-operation between insurers/their panel lawyers and the policyholder's employment rights lawyers.
The problem of bullying and harassment in the workplace can also lead to other issues such as stress and poor mental health. A study has shown work-related stress and burn-out is currently costing the UK economy £28 billion a year. Stress, burn-out and poor mental health generally, results in 23.3 million sick days a year, and “burn-out” was for the first time recognised as an occupational phenomenon in the WHO’s most recent international classification of diseases (ICD-11). One of the key objectives set out in the HSE Strategy for 2022 to 2032, is a commitment over the next 10 years to reduce work-related ill health, with a specific focus on mental health and stress, and these factors will increase the risk of both civil claims and regulatory enforcement action.
We have a UK-wide team that spans all types of legal work relevant to work-related stress, bullying and harassment claims. Our Workplace Stress document can be accessed via here.