Guest post from Chris Hadrill, a partner in the employment team at Redmans Solicitors
Hadrill: Noble aim behind the legislation
In October 2023, the Conservative government passed the Worker Protection (Amendment of Equality Act 2010) Act 2023 (WPA), which had been introduced as a private member’s bill by Liberal Democrat MP Wera Hobhouse in the House of Commons and Liberal Democrat peer Baroness Burt of Solihull in the House of Lords. The Act received Royal Assent on 26 October 2023 and came into force on 26 October 2024.
The purpose of the WPA was, ostensibly, to prevent sexual harassment of employees by, among other things, introducing a new duty on employers to take reasonable steps to prevent sexual harassment in the workplace.
Should the employer fail to uphold its duty to take such reasonable steps, and should an employee succeed with a claim for sexual harassment in the employment tribunal, then the tribunal would have the power to increase compensation awarded to the employee by up to 25% (under a new section 124A of the Equality Act 2010).
Whilst the WPA has a noble aim, there are a number of obvious problems that it causes:
Employers already have the ability, under section 109(4) of the Equality Act 2010, to defend a claim for harassment under section 26 of the Equality Act 2010 if they can show that they took all reasonable steps to prevent the unlawful conduct from occurring – the WPA therefore amounts, to a certain extent, to a duplication of existing legislation.
If an employee issues a claim for sexual harassment, and the employer is unable to show that it took reasonable steps, then the employee is almost certainly going to be able to convince the tribunal that an uplift to their compensation should be made under section 124A.
The new legislation applying the uplift only applies to sexual harassment claims, and not to other types of harassment under section 26(1) of the Equality Act 2010 (for example, age, race, disability-related harassment etc).
Race-related harassment in the workplace, for example, would amount to serious misconduct on the offending employee’s part and can, and does, cause serious upset – why is sexual misconduct put on a pedestal, morally and legally, under the WPA as compared to other types of harassment?
The additional uplift in compensation that can be awarded in sexual harassment claims could lead to enterprising employees trying to frame their sex-related harassment claims, for example, as sexual harassment claim. If they are successful in doing so, they can substantially increase the compensation that would be awarded.
In addition, the increased protections for employees in the workplace to prevent, and punish, sexual misconduct still sits rather uneasily with the Conservative government’s decision in 2013 to repeal section 40 of the Equality Act 2010, allowing employees to hold their employer vicariously liable for the conduct of third parties not employed or engaged by the employer.
What is the logic in enhancing protections for employees to prevent sexual harassment from their colleagues, but completely disempowering them from taking any action to stop the conduct of third parties?
If a male croupier at a casino sexually harasses a female colleague, then there is a well-understood path to holding them and the employer accountable, but if a customer of the casino consistently sexually harasses the same female employee, and the employer does nothing to prevent it, there is no legal recourse for the employee (save, potentially, resigning from her employment and making a claim for constructive dismissal and/or looking to make a claim under the Protection from Harassment Act 1997).
The new Labour government should think carefully about the legal and moral inconsistencies that the WPA has built into protection against harassment in the workplace; as originally drafted, the legislation intended to reintroduce the protection against third-party harassment but then, without explanation, it was removed.
If there is a case for enhancing compensation for sexual harassment cases where an employer has failed to take reasonable steps to prevent sexual harassment, then surely there is an equally strong case for enhancing compensation in respect of other forms of harassment?
Further, the government should also look to again protecting employees from third-party harassment – no good reason was ever provided for repealing this protection or for removing the provisions from the bill, and these protections should be reinstated.
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