1 November 2023|
Worker Protection Bill receives Royal Assent, but are there remaining lacunas in the Equality Act 2010?
Since the #Metoo movement, the Government and campaign groups have conducted extensive research into the prevalence of sexual harassment in the workforce in the UK. A Government study in 2020 revealed that 29% of those in employment reported having experienced some form of sexual harassment in the workplace or a work-related environment. A study by the Trade Union Congress, in 2019, reported that cases were significantly higher amongst those identifying as being LGBTQ+, with 68% of employees reporting that they had been sexually harassed at work.
In response to these studies and campaigns by the Fawcett Group and other women’s groups, in July 2021, the Government committed to legislate for better protections against sexual harassment. In furtherance of this promise, the Government backed a private member’s bill, introduced in 2022 by Liberal Democrat MP, Wera Hobhouse, that sought to introduce a mandatory duty on employers to prevent against sexual harassment and provide a recourse to workers who are subjected to third-party harassment within the course of their employment. On Thursday, 26 October 2023, the Worker Protection (Amendment of Equality Act 2010) Bill (“the Worker Protection Bill”) received Royal Assent and will come into force in one year.
What changes does the Bill make?
As promised, the Bill has inserted into the Equality Act 2010 (“EA 2010”), the requirement that “(1) An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.”
Under the EA 2010 as currently drafted, an employer is vicariously liable for sexual harassment committed by an employee in the course of their employment, unless it can be shown that the employer took all reasonable steps to prevent its employee from committing the sexual harassment complained of.
In theory, this does not require employers to do anything substantially more than what they must do to avoid legal liability under the current EA 2010, but the Worker Protection Bill does change the focus of the employer from establishing the defence after-the-fact, to a mandatory requirement for clear preventative action.
To ensure compliance with this new mandatory duty, the Worker Protection bill also introduces section 124A EA 2010, which establishes that where a tribunal finds that an employee has been sexually harassed and the employer has not taken reasonable steps to prevent sexual harassment in the workplace, the tribunal may order that the employer pay a compensation uplift of up to 25%.
Does the Bill go far enough?
Whilst a step in a positive direction, the Bill is considered to be a “watered down” version of its original proposal and fails to deliver on the entirety of the Government’s promises or address the existing lacunas in the EA 2010 for Claimants who have previously found themselves outside of the scope of the Act.
Third Party Sexual Harassment
The President’s Club scandal in 2018, in which young, female hostesses were told by guests of the male-only dinner, to wear “blacky, sexy shoes” and black underwear, highlighted the lack of recourse within the law for workers harassed by clients, customers or patients. In fact, the Government’s own study in 2020 found that 1.5 million people are harassed at work by a third party each year and was one of the key factors prompting the Government to promise to legislate for third party sexual harassment in 2021.
This promise, however, was short lived as concerns around free-speech and “opening the floodgates” saw the House of Lord remove the proposed protections from the draft Worker Protection Bill. The Court of Appeal case of Unite the Nation v Nalliard  EWCA Civ 1203 will therefore continue to provide the current position on third party harassment, which is that whilst each case will ultimately turn on its facts, an employer will generally not be liable for the harassment of an employee by a third party, unless the employer has dealt with the harassment in a manner that is “significantly influenced” by discrimination.
Third-party harassment therefore continues to be an obvious gap in the law that is unlikely to be addressed anytime soon and leaves a substantial portion of the workforce unprotected.
Contractors employed through their own companies
The Covid-19 pandemic saw a rapid increase in the number of people changing the way they work and taking up short-term roles within the gig economy. The Office for National Statistics recently estimated that as many as 7.25 million people (22.1% of the UK workforce) now work within the gig economy. The rates reportedly being much higher amongst young people. The types of jobs being taken on has spanned all industries, from couriers to professional services and executive level projects of major house-hold brands.
Under the EA 2010, those who are under ‘a contract of employment, a contract of apprenticeship or a contract personally to do work’ are able to bring claims of sexual harassment. Section 41 of the EA 2010 also provides protections to contract workers from harassment by a “principal”. A principal is defined in paragraph 5 of s41 of the 2010 Act as a person who “makes work available for another person who is (a) employed by another person, and (b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that person is a party to it). However, with the rise of the gig economy, there has also been a rise in the number of people working as employees of their own companies. Because these companies often contract with a recruiter or service company, who then subsequently contract independently with an end-user client, there is rarely any contract between the end-user client and the company, and so the requirement under (b) cannot be met, and the employee is left without protection under the EA 2010. This leaves many workers having to engage in lengthy legal battles over the reality of their work versus their contractual agreement, or face being without recourse under the EA 2010 when they are sexually harassed at work. For example, in Halawi v WDFG UK Ltd T/A World Duty Free  EAT 166, the tribunal found that although they had an “uneasy feeling” that the Claimant may have suffered discrimination, they had no means by which to compensate her.
Other Types of Harassment
The mandatory duty to prevent against sexual harassment leaves an obvious question to those dealing with or facing harassment based on other protected characteristics – why is there no duty to prevent other harassment too? As the requirement for positive action and compensation uplift are only applicable to cases involving sexual harassment, a claimant who has been harassed due to their race or disability will therefore receive no uplift to the compensation they are awarded where their employer has failed to take steps to prevent the harassment from taking place. Disability discrimination was the most prevalent claim to be lodged in the employment tribunal this year, so it seems like an opportunity missed to not seek to overhaul the mindset of employers to all forms of harassment, instead of just sexual.
Farore Law is a leading boutique law firm that has a wealth of experience in advising the victims of sexual harassment to seek justice. We are well placed to provide appropriate advice regarding making an allegation through your company’s internal grievance process, seeking a settlement agreement and commencing litigation. Our lawyers frequently advise senior executives and other individuals who have been subjected to sexual harassment (or have been accused of committing sexual harassment) and recognise the importance of anonymity and reputation management.
Please contact us if you require legal advice after being subjected to sexual harassment and/or less favourable treatment because you have either submitted to, or rejected, sexual harassment.