Further amendments to the Employment Rights Bill around the 3rd party harassment provisions unlikely

The Government has responded to the Department for Business and Trade (DBT) and the Office for Equality and Opportunity (OEO) to provide answers to questions raised about the third-party harassment provisions in the Employment Rights Bill. 

The DBT and OEO asked for carve-outs in relation to “overheard opinions” but the Government does not consider them necessary. 

The aims of the “overheard opinions” amendment during the passage of the Worker Protection (Amendment of Equality Act 2010) Act 2023 were to protect freedom of expression and ensure impractical burdens were not placed on employers. 

The Government says Clause 20 of the ERB already meets those aims as: 

• any step by an employer that would result in a disproportionate interference with a third party’s right to freedom of expression would not be a reasonable step;
• employers only need to do what is reasonable for their specific circumstances which, in relation to third parties, makes the obligations more limited than for employees.

The DBT and OEO also requested a “three strikes rule” but again the Government does not consider this to be necessary as it says that clause 20 already takes a balanced approach, both in the definition of harassment (so a one-off incident is much less likely to create the proscribed environment) and the reasonable steps an employer could be expected to take to prevent it.

As to why clause 21, which enables regulations to specify specific steps that are to be regarded as reasonable, is limited to sexual harassment, the government will only create requirements for specific steps to be taken where the evidence justifies this. This is in line with the emphasis already placed on preventing sexual harassment through the preventative duty in section 40A of the Equality Act 2010. 

In terms of the interaction between clause 20 and section 40A of EqA, clause 20 will allow an employee to bring a third-party harassment claim (including sexual harassment) against their employer and, if successful, a tribunal must also consider whether the preventative duty was breached. This will mean that the preventative duty will apply in the same way as it currently does to successful claims of employee-on-employee sexual harassment.