Wera Hobhouse – 2022 Speech on Worker Protection (Amendment of Equality Act 2010) Bill

The speech made by Wera Hobhouse, the Liberal Democrat MP for Bath, in the House of Commons on 21 October 2022.

I beg to move, That the Bill be now read a Second time.

I was very excited to be placed 15th out of 20 in the private Members’ Bills ballot earlier this year. My number was 461 because in 2017 I was the 461st woman ever to be elected to Parliament. I owed it to my winning number to introduce a Bill that would improve women’s equalities, rights and protections. The Bill will protect not only women but all employees from sexual harassment in the workplace, but the great majority of people affected by the new legislation will be women.

I thank the Fawcett Society and the Government Equalities Office for their tireless work on drafting the Bill and for many prior years of campaigning. My thanks also go to the Women and Equalities Committee, whose inquiry into workplace harassment led to a 2018 report that was influential in driving the proposed changes in the law.

For too long, women and girls have been unsafe in the workplace. An Opinium survey suggests that 20% of the UK population have experienced some form of sexual harassment in the workplace. That is more than 10 million people—a shocking number. It is therefore right and imperative that the law changes to protect people in work. In these testing times, such legislation is more important than ever.

Harassment is both morally unacceptable and bad for the economy. Evidence suggests that disrespectful and abusive work practices lead to lower performance and productivity and increased staff turnover. Even for those who are not compelled by the moral reasoning behind increased protection from workplace harassment, it is hard to ignore the economic arguments.

The 2018 Presidents Club scandal highlighted the extent to which people are currently unprotected by the law. In that instance, young female hostesses were allegedly sexually harassed by businessmen at a notorious men-only dinner, being instructed to wear “black, sexy shoes” and black underwear. Those women, who faced violations of their dignity, would not have had recourse to the law as it stands. Sexual harassment by third parties is a major problem in the UK. A 2017 survey suggested that 18% of those who had experienced workplace sexual harassment said that the perpetrators were clients or customers. Some 1.5 million people have been harassed by a third party, meaning that clients or customers were allowed to harass 1.5 million workers.

Workplace sexual harassment is widespread and widely under-reported. A TUC survey suggested that 79% of women do not report their experience of sexual harassment, for many reasons including fear of repercussions, lack of awareness regarding their rights and fear of not being taken seriously. Those concerns are heightened for people of colour, people in the LGBT+ community and people with disabilities, who already face greater discrimination in the workplace. It is understandable why people do not come forward. For one, it is not just third parties who harass people, with 20% of surveyed women suggesting that their direct manager or someone else with direct authority over them was the perpetrator. It therefore goes without saying that any reporting could have direct career implications for those involved.

Whether sexual harassment is by a third party or not, employers have not done enough to prevent and punish it. The Equality and Human Rights Commission found that in nearly half of cases reported, the employer took no action, minimised the incident or placed the responsibility on the employee to avoid the harasser. It seems that the risks of reporting sexual harassment can outweigh the merits. That is disgraceful in modern Britain. The problem is that the current laws on sexual harassment mean that employers often adopt individual responses to institutional problems. That creates space for employers to minimise what is going on and leads to confusion about how to respond appropriately. Statistics show that only 45% of managers felt supported by their organisation when reports were made to them. Ultimately, the current laws leave people who have encountered traumatic experiences unsupported. We can and must do better.

The Government agree that more needs to be done to tackle sexual harassment in the workplace. In their 2021 response to a consultation on workplace sexual harassment, the Government committed to introduce a new preventative duty for employers, to provide more explicit protections from harassment by third parties, and to support the EHRC to develop a new statutory code of practice on workplace harassments. For things to improve, we need a shift in focus from redress to prevention. Currently the question of whether employers have taken adequate steps to prevent sexual harassment arises only as a defence if an incident of sexual harassment has already occurred. That means that employers are not required to take actions that prevent sexual harassment. Indeed, the EHRC found in 2018 that only a minority of employers had effective processes in place to prevent and address sexual harassment.

The Bill would provide the shift in focus that is so desperately needed. Clause 2 would ensure that employers prioritise prevention by imposing a new duty on them to take “all reasonable steps” to prevent their employees from experiencing workplace sexual harassment. That will not require employers to do anything substantially more than what they currently must do to avoid legal liability for acts of harassment carried out by their employees, but it would mean that employers could potentially be further held to account if they have failed to take those actions, first by an uplift in the compensation awarded at an employment tribunal, and secondly through the EHRC’s strategic enforcement. That will, I hope, push employers to prioritise prevention of sexual harassment, including through improving workplace practices and culture.

The new duty would operate through dual enforcement. The EHRC may take enforcement action for a breach or suspected breach of the duty under its strategic enforcement policy. This means that women would be able to inform the Equality and Human Rights Commission of any concerns without necessarily having to take forward legal action against their employer. In addition, the employer’s duty will be enforceable by the employment tribunal in individual cases. Where the employment tribunal has found in favour of an individual claim of sexual harassment and has ordered compensation to be paid, the tribunal will examine whether and to what extent the duty has been breached.

Where a breach is found, tribunal judges will have the power to order an uplift of up to 25% of the compensation awarded. The Bill will also introduce explicit protections against third-party harassment in the workplace. Clause 1 would make employers liable for the harassment of their staff by third parties, such as customers and clients, where they have failed to take all responsible steps to prevent such harassment from happening. These protections will apply to all acts of third-party harassment in the workplace, including racial as well as sexual harassment.

Once again, there will be a system of dual enforcement. Individuals will be able to bring claims to an employment tribunal in the usual way for work-related cases under the Equality Act 2010. The Equality and Human Rights Commission will have strategic enforcement powers. Compensation will be assessed in the usual way for Equality Act claims, with the same uplift outlined earlier available in cases where a breach of duty has also been established following a successful third-party sexual harassment case.

A claim for third-party harassment could be brought after a single incident of harassment. This replaces the previous “three strikes” formulation, whereby employers needed to know of two previous incidents of third-party harassment before they could be considered liable, but employers will be able to rely on the “all reasonable steps” defence in the usual way. To ensure that employers are as informed as possible about the proposed changes, which will come into force 12 months after Royal Assent, the Government Equalities Office will support the Equality and Human Rights Commission in creating a statutory code of practice on sexual harassment and harassment in the workplace. This will be based on the technical guidance that the Equality and Human Rights Commission published in 2020 and will be introduced as the new legislation comes into force.

The Equality and Human Rights Commission will have a duty to consult on this code of practice in advance. In the meantime, the Government Equalities Office has produced guidance for employers on how to prevent sexual harassment, which I understand it is looking to publish in due course.

Let me finish by turning away from the technical details of the Bill, and return to the wider set of circumstances that makes it important for us to pass this legislation. An unacceptable number of nurses, paramedics, bar staff, people who were key workers during the pandemic and everyone in between are being subject to a form of harassment that causes a variety of harms, including psychological, physical and economic harm. Employers should be required both morally and legally to take all reasonable steps to stop sexual harassment from occurring. The fact that the law of this country does not compel them to do so is a concern.

For too long the onus for challenging sexual harassment has been on individuals. Our current laws mean that employers do not know how to respond to cases appropriately, which leaves people who have encountered traumatic experiences unsupported. Introducing a standalone preventive duty for employers will shift the responsibility from individuals to the institution. It will prevent harassment and protect victims, and it will drive a change in the culture around victim blaming. I urge that this House supports my Bill, enshrining in law historic measures to protect employees from harassment in the workplace.

I thank everybody across the House who has given support to this Bill and already committed to serving on the Committee that will ensure that the Bill progresses through the House.