The Worker Protection (Amendment of Equality Act 2010) Bill (the Bill), if implemented, could be one of the most notable changes to workplace discrimination law since the Equality Act 2010 (EqA 2010). The Bill imposes a proactive duty on employers to take all reasonable steps to prevent the harassment of its employees by third parties with a compensation uplift where they fail to do so.
The Bill, which is currently making its way through Parliament, introduces several changes to the Equality Act 2010. The key changes relevant to schools are explored further below.
Harassment by third parties
As Schools are aware, the EqA 2010 already protects employees from harassment by their employer and colleagues. Harassment is defined in the EqA 2010 as “unwanted conduct relating to a protected characteristic” – e.g., disability, age, race, religion or belief, gender reassignment, sex or sexual orientation – where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
When the EqA 2010 came into force, it also contained provisions protecting employees against harassment by third parties. However, these protections were repealed in 2013. The Bill reintroduces the protection making employers liable to employees in connection with third-party harassment where they have not taken reasonably practicable steps to prevent it.
It applies to all forms of unlawful harassment, including racial harassment and offensive conduct based on gender, age or disability.
Duty to prevent sexual harassment
There is also a new duty on employers to take ‘all reasonable steps’ to prevent sexual harassment in the course of an employee’s employment. What constitutes reasonable steps depends on the circumstances of the employer and consideration would be given to factors such as size and sector. Schools will therefore need to think carefully about whether they are taking such steps and if not, what they need to do to ensure that they meet the required threshold.
It is believed that this new duty will also be supported by the Equality and Human Rights Commission’s (EHCR) statutory code of practice on workplace harassment. The new code is expected to be published in advance of the Bill coming into force.
Any standalone complaints about an employer’s duty to take reasonable steps are a matter for the EHCR and do not fall under the jurisdiction of the Employment Tribunal (ET). The ET will only be able to consider individual claims for a breach of this duty where a claim of sexual harassment has been upheld.
Compensation for sexual harassment is uncapped, and awards vary (depending on the financial loss suffered by the claimant and the severity of the injury to feelings). It is possible that an uplift in compensation of up to 25% could be awarded to reflect to what extent, in the view of the ET, the employer’s duty to take reasonable steps has been breached. Schools should therefore be aware of the potential financial implications should they be found not to have discharged this duty.
Amendment to the Bill
The Bill has recently been amended to address concerns around the potential impact of the new harassment protections on free speech. Essentially, employers will not be liable (save for in cases of sexual harassment) for acts which would normally amount to harassment but where the conduct in question is a conversation in which an individual is not a participant, it is not aimed at an individual, or it involves an expression of an opinion on a political, moral, religious or social matter (which is not “indecent or grossly offensive” and is not intended to insult the employee or create a hostile environment for them).
This change seems likely to cause confusion for employers and employees specifically in relation to determining which comments/discussions/conversations are caught by the legislation. Furthermore, the aim of the Bill is to help remove discriminatory and harassing behaviours and this amendment does not appear to be consistent with this.
Implications for schools
We understand that the Bill is unlikely to come into force until 2024 at the earliest, although its future remains uncertain. However, schools should consider taking action now in preparation for the changes. Some practical steps schools could consider include:
- Reviewing all relevant policies and procedures to ensure that they are updated in line with the new law.
- Carrying out specific training for staff, including how to identify acts of harassment and guidance on supporting victims.
- Establishing particular reporting lines so that employees feel confident to report cases of harassment.
- Deal with complaints of this nature promptly and effectively.
- Identify the risk of harassment in the different roles across the School, particularly those roles where an employee is more likely to encounter third parties. Schools should consider, perhaps in conjunction with their employees, whether there are any arrangements which could be put in place to reduce risk in this area.
We will of course keep schools updated on this.