In 2021 the UK government committed to supporting legislation aimed at better protecting employees from harassment. The proposals are designed to address the widespread sexual harassment British women experience at work, in the aftermath of the #metoo movement which ignited a public conversation on the subject.
The proposed legislation shifts focus from compensation to prevention, with the most significant proposal being a new positive duty on employers to "take all reasonable steps" to prevent their employees experiencing workplace sexual harassment. The Bill would also reinstate employers' liability for harassment of employees by third parties (such as customers) if they fail to take reasonable steps to prevent the harassment. This protection would apply to all acts of third party harassment in the workplace (not only sexual harassment) and failure to comply could lead to a 25% uplift in compensation awarded by an Employment Tribunal.
However, the Government has introduced a last-minute amendment to the proposals that, according to some women's charities, risks undermining these new protections. The amendment aims to address concerns about the impact of the Bill on free speech and provides that employers will not be liable for workplace harassment (other than sexual harassment) where the harassment is a conversation in which the complainant does not take part, where opinions are expressed on a political, social, moral, or religious matter, providing the opinion is not grossly offensive and there is no intention to violate dignity. In brief, it aims to cover "overheard" conversations where a personal view is expressed.
The amendment is surprising and, for employees, worrying. There is little evidence of spurious employment claims involving this scenario and employers have not lobbied for this change. Employment Tribunals have long grappled with cases involving employees' freedom of expression, and, in recent years, have often favoured freedom of expression. By imposing a rigid formula to balance the competing interests of protection from harassment and free speech, the amendment seeks to do what courts have been doing already, but in a less sophisticated and flexible way.
This amendment would create additional legal complexity - it would change the existing tests for harassment by colleagues as well as for harassment by third parties and would create a two-tier system: with one legal test for sexual harassment and another, higher threshold for all other harassment related to protected characteristics, creating a hierarchy of harassment.
How would this operate in practice? An employee who came to the UK as an asylum seeker and overheard colleagues making derogatory comments about asylum seekers might not have a claim for harassment if his colleagues had not used "grossly offensive" language such as racial slurs, whereas a female employee who overheard colleagues discussing pornography could have a potential claim for sexual harassment. It also creates further complexity for disabled women or women of colour, who are statistically more likely to experience sexual harassment, where they experience multiple kinds of harassment.
Despite these objections, the Bill (including this amendment) looks set to become law, meaning employers will have a positive duty to stop sexual harassment and can be liable for harassment by third parties. Employers will therefore want to revisit their employment policies and any anti-harassment training on offer to staff and consider what more can be done to support employees in reporting harassment.
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