The Worker Protection (Amendment of Equality Act 2010) Bill currently proceeding through Parliament and predicted to become law in 2024, raises some subtle questions about the relationship between protection from harassment and freedom of speech.
When the Equality Act 2010 was passed, it included provisions outlawing third party harassment and providing a legal claim against an employer by an employee who suffered harassment by a third party such as a customer, client or visitor.
These provisions were criticised at the time as unduly complex, in particular, for the fact that they required the employee to have suffered two previous incidents of harassment at work. The provisions were rarely used. But rather than amend the law to something that actually worked well, the government threw out the baby with the bath water, and entirely repealed the provisions under section 65 of the Enterprise and Regulatory Reform Act 2013 as part of its “Red Tape Challenge”.
There remained some scope to bring a claim for third-party harassment under section 26 of the Equality Act on the basis that an employer’s failure to prevent harassment by a third party is itself harassment. But
in Unite the Union v Nailard  EWCA Civ 103 the Court of Appeal held that to succeed in a claim of this kind, the claimant must prove that the employer has a discriminatory motive for failing to take action.That will rarely be possible. As a result, employees were left relatively unprotected in this situation.
A few years after the Red Tape Challenge, the #MeToo movement brought workplace harassment into sharp focus, including harassment by clients and customers to workers . This included undercover reporting by the Financial Times of a notorious charity fundraising event at the now closed Presidents Club in 2018 , where the hostesses were reportedly groped and sexually harassed by rich and powerful men.
In 2018, after a call for evidence, the EHRC published a report called “Turning the tables: Ending sexual harassment at work”. The report found that third-party harassment is a particular problem for people in customer-facing roles, with around a quarter of those reporting harassment saying that the perpetrators were third parties. They also found that third-party sexual harassment was dealt with poorly and was viewed by some employers as a ‘normal’ part of the job.
It recommended amongst other steps that:
· the UK Government should introduce a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation in the workplace.
· Breach of the mandatory duty should constitute an unlawful act for the purposes of the Equality Act 2006, which would be enforceable by the Commission.
The Government announced it supported the recommendations, and backed a Private Members’ bill.
Under the new law, when it comes into force (likely to be in 2024),
an employer will be liable if a third party harasses an employee in the course of his or her employment and the employer has failed to take all reasonable steps to prevent them from doing so. The provision is not limited to sexual harassment and so covers the other relevant protected characteristics as well.
A new duty will also require an employer to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment. Breach of the duty will be an unlawful act, enforceable by the Equality and Human Rights Commission. There will be a Code of Practice setting out what reasonable steps should be taken.
Although employees will not be able to bring standalone claims specifically for breach of the duty to take reasonable steps to prevent sexual harassment, if an employee is successful in a claim for sexual harassment and the employment tribunal rules that the employer is in breach of the duty, it will have the power to award an uplift in compensation not exceeding 25%.
These are largely positive developments which should reinforce the obligations on employers to protect their employees and plug an important gap where employees are at risk of third party harassment.
However concerns have been raised about the scope of the provisions in the context of free speech.
The Government has proposed an amendment to the Bill so that employers will not be liable for workplace harassment (other than sexual harassment) in circumstances where that harassment arises as a result of a ‘protected conversation’: one which involves the expression of opinion on a political, social, moral or religious matter, in which an individual is not a participant. In effect, this intends to exclude overheard conversations where a personal view is expressed. This amendment has been proposed with a view to addressing concerns about how the Bill, as previously drafted, might curtail the legitimate expression of free speech.
Despite this proposed amendment, the solicitor James Murray of Mishcon de Reya, a specialist in law related to Higher Education and academic freedom has raised concerns whether the change in law will still negatively affect academic freedom on campus, with officials using the excuse of the third party liability to disallow controversial academic speakers on campus
Obviously, this Bill is not yet law, and there may be further amendments. But the lesson from the Red Tape Challenge is one that this Government (currently engaged in potential mass repeal of EU legislation via the Retained Law (Revocation and Reform) Bill 2022 (also proceeding currently through Parliament) would be wise to learn.
Is this or any law red tape or essential protection? I welcome this long overdue protection from third party harassment but great care needed to ensure the right balance to protect free speech.