Before the election, Labour set out its stall as the party of equality, committed to building on the successes of previous Labour Governments to ensure that everyone thrives at work. The Employment Rights Bill marks the start of that commitment, containing a number of provisions aimed at promoting equality and preventing harassment in the workplace.

Preventing Sexual Harassment

Labour pledged to require employers to create and maintain workplaces and working conditions free from harassment and has made good on that pledge in the Bill.

The Worker Protection (Amendment of Equality Act 2010) Act 2023, which came into force a few days ago on 26 October, requires employers to take reasonable steps to prevent sexual harassment, and whilst the Equality and Human Rights Commission has published updated guidance to help with the new preventative duty, many employers are still in the process of assessing what “reasonable steps” might mean in their organisation.  The Bill makes one important change to the new preventative duty, namely that employers must take all reasonable steps to prevent harassment.

On the face of it, that is a massive ask for employers, and in fact the word “all” was taken out of the Worker Protection Act before it was brought into force for that very reason.  However, the Bill also provides that future regulations may specify the steps that will be regarded as “reasonable” for the purposes of the preventative duty, including carrying out assessments of a specified description; publishing plans or policies of a specified description; steps relating to the reporting of sexual harassment; and steps relating to the handling of complaints.  If, as seems likely, the beefed-up preventative duty is supported by a statutory list of “reasonable steps”, it may in fact be more straightforward for employers to comply.

Third Party Harassment

A more radical change to the Equality Act is the introduction of protection from third party harassment, although employers who have been in business for a long time may recall that third party harassment was covered by the Equality Act for a period of time until 2013 so this “new” protection is not entirely new.

Under the Bill, an employer must not permit a third party to harass one of its employees in the course of their employment. An employer will be taken to have permitted harassment if it failed to take all reasonable steps to prevent that harassment. For “third party” read customers, clients, service users, suppliers, contractors, agency workers, interns, volunteers and members of the public – anyone who is not an employee of the employer.

Helpfully, the current EHRC guidance makes it clear that taking reasonable steps to prevent sexual harassment includes sexual harassment from third parties, so employers should already be thinking about the risk to employees posed by third parties. However, the new protection will apply to all harassment, not just to sexual harassment, so employers will need to broaden the scope of their risk assessments to include the risks of any kind of third party harassment occurring in the course of employment.

Whistleblowing Protection

As a final step, the Bill introduces a new category of protected disclosure for the purposes of the whistleblowing legislation, namely the disclosure of information that tends to show that sexual harassment has occurred, is occurring or is likely to occur.  This doesn’t really add to the existing protection available to employees who report sexual harassment, but it will arguably make it clearer to employees that they have protection.

Protection for pregnant workers

In its policy paper published alongside the Bill, the Government says it will strengthen protections for pregnant workers, making it unlawful to dismiss them within 6 months of their return to work except in specific circumstances.  In fact, the Bill simply provides that the Secretary of State may, by regulations, make provision about dismissal (other than by reason of redundancy) during, or after, a protected period of pregnancy, so the detail for this policy is yet to come.

Equality Action Plans

The Bill sets out the option for future regulations that may require employers to develop and publish an “equality action plan”, setting out the steps they are taking in respect of gender equality and publishing specified information about gender equality in their workplace. Gender equality is defined as advancing equality of opportunity between male and female employees and includes addressing the gender pay gap and supporting employees going through the menopause. This reflects the commitment in Labour’s manifesto to introduce a requirement for large employers to produce Menopause Action Plans

Once implemented, this obligation will only impact private sector employers with 250 plus employees.

In the pipeline

The Government has also committed to publishing a draft Race and Disability Bill “during this parliamentary session”, which will extend the right to equal pay to cover ethnicity and disability and introduce mandatory ethnicity and disability pay reporting for employers with 250 or more employees, so watch this space!

For more information about these issues, please contact Fiona Hamor – fiona.hamor@pannonecorporate.com