Sue Gilchrist: Employer liability for workplace discussions

Sue Gilchrist: Employer liability for workplace discussions

Sue Gilchrist

Sue Gilchrist comments on a new bill intended to protect employees from sexual harassment.

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.

The Worker Protection (Amendment of Equality Act 2010) Bill was introduced to Parliament by a Liberal Democrat MP and peer as a private member’s bill, subsequently winning the support of government, which makes its passage into law more likely.

Under the bill, employers 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, with this latter protection extending to all Equality Act-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. Reflecting on those concerns, minister for women, Maria Caulfield, said 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 the employer’s duty to prevent employee-on-employee harassment and to its potential liability for third-party harassment, but do not apply to cases of sexual harassment or to harassment which follows from an employee refusing or submitting to sexual conduct, which benefit from a higher level of protection.

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. 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.

Citing the employment tribunal case of Sule v Shoosmiths, which found the employer liable for harassment following an incident when two employees were overheard within earshot of another colleague, the minister said: “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.

“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.”

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 passed to the House of Lords for further scrutiny, with the second reading of the bill in the Lords scheduled to take place today.

Sue Gilchrist is a legal director at Pinsent Masons

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