The Worker Protection (Amendment of Equality Act 2010) Bill which a few months ago looked to have been abandoned now seems likely to pass into law but with significantly amended and reduced worker protections.

In April, we wrote that the Worker Protection (Amendment of Equality Act 2010) Bill (which had initially seen some progress through Parliament) was at risk of being dropped as Government support for the substantial new employer duties soured. However, following a House of Lords debate on 14 July 2023, major changes to the Bill were agreed that substantially watered down its effect, making it more likely to be accepted by the Government and passed into law.

Previously, the Bill would have introduced (1) liability for employers for the harassment of their employees by third parties and, (2) a new duty on employers to take all reasonable steps to prevent the sexual harassment of their employees in the course of their employment.

Under the amendments, (1) has been completely removed meaning that a separate duty to prevent third party harassment will not be introduced. Further, (2) has been redrafted to remove “all” from the provision obliging employers to take “all reasonable steps” to prevent sexual harassment. This leaves a reduced duty to take only “reasonable steps” and raises the question, what does “reasonable steps” entail: would this be satisfied by only a couple of actions or demand more substantial attention? It was suggested that the Equality and Human Rights Commission’s “Sexual harassment and harassment at work: technical guidance” will become a statutory code of practice and therefore the preventative steps laid out in that guidance may be what the Tribunals use to judge whether reasonable steps have been taken.

It should be noted that the Bill is not intended to alter the related existing duty in s.109(4) of the Equality Act 2010 under which employers are responsible for any act of harassment committed by their employees, unless they have taken "all reasonable steps" to prevent it. What it would mean is that if an employee succeeds with a sexual harassment claim, a Tribunal will then have to consider whether the employer has also failed to comply with the new and separate duty to take reasonable steps to prevent sexual harassment. If the Tribunal holds that is the case, then the claimant can receive additional compensation of up to 25% of their compensatory award.

The Government have indicated that they intend to accept the amended Bill and, unless matters change again as the Bill passes through the final stages of the legislative process, it is likely to pass into law and bring with it important changes to how employers should operate. While the duties are not as radical as previously outlined, employers will still need to take specific documented action to ensure compliance with the new duty to prevent sexual harassment.

While Labour peers supported the compromises to see the Bill through, it was indicated a future Labour Government may revisit these protections. As society becomes more cognisant of these issues in the workplace, it is unlikely legislative attention will abate.

If you’d like some helping conducting a mini-audit of your current measures in place to prevent harassment in the workplace, please get in touch with our team who would be happy to help.

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