Government plans to limit UK employer liability over views expressed at work

Out-Law News | 14 Mar 2023 | 1:59 pm | 2 min. read

The UK government has intervened on draft legislation currently before parliament to address the risk that employers will take “unreasonable or drastic measures” to avoid being held liable for the harassment of their staff.

In a debate in the House of Commons last week, minister for women, Maria Caulfield, outlined the reasons behind amendments tabled to the Worker Protection (Amendment of Equality Act 2010) Bill.

The Bill was introduced to parliament by a Liberal Democrat MP and peer as a private members Bill last year. It has subsequently won the support of government, which makes its passage into law more likely.

Under the Bill, employers in the UK would face a positive duty to “take all reasonable steps” to prevent their employees experiencing workplace sexual harassment. The Bill also makes provision for employers to be held liable for the harassment of staff by third parties, such as clients, suppliers, or customers. This latter protection extends to all protected characteristics, not just sexual harassment.

However, amendments to the Bill were tabled after concerns were raised about the impact the proposed new provisions might have on legitimate workplace discussion. Caulfield reflected on those concerns in parliament, stating that employers might “feel obliged to shut down conversations conducted in their workplaces” to ensure they were not held liable for harassment.

Under the amendments, employers will not be considered to have failed to take all reasonable steps to prevent harassment if: the harassment is unintentional and stems from a discussion to which the employee isn’t a party or to speech which isn’t directed at them; people are discussing or expressing an opinion on a political, moral, religious or social matter; and the opinion isn’t directed at the employee and isn’t “indecent or grossly offensive”.

The amendments apply to both the employer’s duty to prevent employee-on-employee harassment and to its potential liability for third-party harassment. The amendments, however, do not apply to cases of sexual harassment or to harassment which follows from an employee refusing or submitting to sexual conduct.

Employment law expert Sue Gilchrist of Pinsent Masons said the changes stem from the stream of cases on issues reflecting a clash of, for example, religious beliefs, and views on gender identity and gay marriage. She said that while guidance from the Equality and Human Rights Commission is expected, there is likely to be satellite litigation around issues such as what constitutes ‘indecent’ or ‘grossly offensive’ opinion. She said the courts had already provided some guidance, stating in the case of Forstater, for example, that “beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society”.

In parliament, Caulfield cited another case which she said highlighted the root of concerns: “In 2018, the employment tribunal case of Sule v Shoosmiths found the employer liable for harassment, following an incident when two employees were overheard within earshot of another colleague. There are concerns that such cases may cause some employers to feel under a duty to end or modify such conversations, to prove that they have taken all reasonable steps to prevent harassment.”

Caulfield added: “We want the legislation to be clear, but while employers will be expected to take action against workplace harassment, those actions should fall short of prohibiting the conversation of others, subject to certain limitations.”

Gilchrist said: “The amendment looks set to protect legitimate and appropriate workplace discussions, and employers would be well-placed to set in place standards for conduct which encourage tolerance and appropriate behaviours at work.”

The Bill has now passed from the House of Commons to the House of Lords for further scrutiny. The second reading of the Bill in the ‘Lords is scheduled to take place on 24 March.

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