27 July 2023

Over the last year, many employers’ attention will have been drawn to the Worker Protection (Amendment of Equality Act 2010) Bill, a 2022 Private Members’ Bill supported by the Government which, as drafted, would have made employers liable for the harassment of their employees by third parties. This could include, for example, harassment by the employer’s independent contractors, by its customers, or by members of the public present incidentally.

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

1. The provision making employers liable for the harassment of employees by third parties has been removed altogether.

2. The extent of the new duty on employers to prevent the sexual harassment of their employees has been amended from ‘take all reasonable steps’ to ‘take reasonable steps’.

While these amendments are likely to be opposed by some MPs when they are considered by the House of Commons, crucially, the Government has stated that it will ‘seek to accept’ these amendments. It is therefore likely that the Bill will pass into law as amended.

The removal of the provision for employers’ liability for third-party harassment is likely to be welcomed by those who felt it would introduce an unreasonable burden on employers.

The amended duty to ‘take reasonable steps’ to prevent harassment will nevertheless represent a significant addition to employers’ responsibilities. Under the Bill, if a tribunal found that an employer had breached this duty, it could uplift compensation to the claimant by up to 25%.

It is unclear what the effect will be of the removal of ‘all’ from the phrase ‘take [all] reasonable steps’. In the Lords, it was argued by Baroness Noakes that taking ‘all reasonable steps’ to prevent the harassment of employees by third parties might entail an ‘infinite’ and therefore unworkable obligation, especially for small businesses.

Whether or not this correctly reflects how a court would have interpreted the provision, it should be noted that this standard will apply only to third-party harassment – not harassment by other employees, which is governed by the Equality Act 2010 as it stands. Under the Equality Act, an employer is liable for its employees’ acts of harassment, and the employer only has a defence if it can show it took ‘all reasonable steps’ to prevent the harassment (ignorance is no defence).

Given the likely controversy of the amendments, it is possible that, even if the Bill passes into law in its amended form, employers’ liability for third-party harassment will be legislated for in the future. During the Lords debate, Baroness Thornton of the Labour Party supported the amendments in order to ensure the Bill passes, but left open the possibility that Labour might ‘return to this issue when we are in government’.

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For further information or to take legal advice, please contact the team at Synchrony Law.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.