My Lords, in opposing Clause 57 standing part of the Bill, I thank the noble Lords, Lord Lester and Lord Low, and my noble friend Lady Turner for supporting me in doing so. Clause 57 seeks to repeal Section 40 of the Equality Act 2010. Section 40 makes an employer liable for repeated harassment of their employees by a third party, including customers, clients and service users. The liability is triggered only if an employee has suffered such harassment on three or more occasions, the employer knew of the previous incidents and the employer has failed to take reasonable, practicable steps to prevent its recurring. The Government have stated that there is no real or perceived need for this protection but we believe that that simply is not true.
I am grateful to Thompsons Solicitors, who specialise in such matters, for their views and for a copy of the evidence that they submitted to the GEO as part of the consultation on this matter. What is clear from their considerable experience is that the majority of such claims are settled before a hearing happens, which is all to the good. Thompsons point out in that evidence:
“The government’s logic for repealing the provision is contradictory. On one hand the consultation states that the provision is a burden on business and on the other hand it states that it is only aware of one case in England and Wales where a claim relating to this provision was determined at an employment tribunal hearing”.
Given that the provision has been in place for all protected characteristics for less than two years, the Government are not in a position to make an assumption about the effectiveness of the provision within such a short period. Neither do we understand the logic that just because there are not many claims relating to this provision, it is somehow bad law.
It is not in the interests of society to remove from employers the responsibility for protecting workers against harassment from third parties. Workers should be entitled to carry out their duties and engage with third parties without fear of harassment. Do we really want workers to be exposed to harassment on the grounds of one of the protected characteristics without having the force of statutory protection from such harassment? For example, surely a nurse treating a patient should be entitled to expect protection from their employer against harassment by that patient on one of the protected grounds. Losing the provision would be inconsistent with the equality directive, as per EOC v the Secretary of State for Trade and Industry, in that the directive sets out associative protection. This would lead to further litigation. Can the Minister confirm that this is indeed the case? Even if it could be argued that the current legislation goes beyond the requirements of the directive, to amend the legislation by removing the provision would breach the non-regressive provisions of the directive—that is, the equality and recast equal treatment directives. Could the Minister please say whether this is true?
Is there a need for Section 40? We would argue that, yes, there is. A 2008 study by the University of Warwick for the NUT, of 2,575 teachers across 13 local authorities, found that one-third of the respondents experienced threats on at least a monthly basis. A survey for the NAS/UWT found a similar third of teachers suffered prejudice-based harassment and bullying. The EHRC has also found evidence of the prevalence of third-party harassment and its impact, demonstrating a widespread need for the law to provide protection. The people most likely to be affected by the abolition of this provision are some of the most vulnerable and poorly paid people, who are least able to defend themselves. For instance, a recent report on the treatment of care workers by clients comments:
“A survey of public sector social services staff found ethnic minority staff had experienced racist verbal abuse from service users; inappropriate questioning of their authority by users or relatives; users not wanting to be touched by them or asking to be dealt with by a White person (most frequently occurring in the user’s own home); and physical attacks perceived to be racially motivated. Inappropriate remarks from colleagues were also experienced”.
Thompsons say that they have advised and represented unions and union members in third-party harassment claims. With their kind permission, I will mention two such cases. The first involves three claimants who were constantly racially abused by patients in a mental health hospital where they worked as nurses. The perpetrators were two individuals on the same ward. The claimants requested to work shifts where they would not be in contact with the two individuals. The employer refused to change the claimants’ shifts or to take any action against the perpetrators. The claims were settled prior to a full hearing for £3,000 for each claimant, with an undertaking from the NHS trust concerned that action would be taken to protect the claimants from further acts of harassment.
Thompsons also report that their transport union clients are regularly asked to advise when members have been subject to racist abuse by passengers. The TUC certainly asserts that the introduction of Section 40 of the Equality Act has already led to a step change
among employers, with actions undertaken to make it clear to service users that harassment of their staff will not be tolerated. Moreover, there may be hidden costs to business for not prioritising action against third-party harassment. Harassment can have a significant effect on the physical and mental health of the workforce, and be a major cause of work-related stress, affecting work performance and absence levels.
The proposed repeal of third-party harassment provisions has been introduced following the Government’s Red Tape Challenge. However, there is no publicly available evidence of concerns being raised about them during the first stage of the challenge. When the Government asked specifically for views on prohibited conduct, not one of the 214 of those who responded opposed the third-party harassment provisions, and a number specifically supported them. When the Government consulted specifically on third-party harassment, 71% of those who responded were opposed to repeal. Moreover, due to the familiarisation costs associated with the change in legislation and the minimal savings to business that are expected as a result of the repeal, the Government’s own impact assessment calculates that this repeal will be an additional burden to business, and not a saving. The assessment admits:
“Provisions for third party harassment may have had a wider impact on reducing discrimination in the workplace, outside of specific third party harassment claims, so the repeal may lead to more instances of workplace discrimination”.
At Second Reading in the House of Commons, Ministers gave a categorical assurance to my honourable friend Kate Green MP that this Bill would not be used to take forward proposals as featuring in the Beecroft report on employment law, relating to employer liability for third-party harassment.
In conclusion, I put the following case to the Minister. A employs B. C interacts with B during the course of their employment. C harasses B on the basis of a protected characteristic—race, sex, sexual orientation or disability. A either fails to take adequate steps to minimise the risk of harassment—policy signage, risk assessment, preventive steps and so on—or fails to do so after being specifically alerted to C’s behaviour and prior to a repeat of it. B and C could be a nurse and a patient, a nurse and a family member, a receptionist and a customer, benefits agency staff and a claimant, a taxi dispatcher and a customer, a teacher and a parent, a warehouseman and a delivery driver, a guard on a train and a passenger, a council officer and a service user, a member of an MP’s staff and a constituent and so on.
A third-party harassment provision saves tribunal time and focuses employers’ minds. It also ultimately saves legal costs. Other legal avenues—direct race discrimination or sex discrimination claims, for example—are not available. Establishing that the employer is responsible for the harassment by allowing or failing to prevent a hostile environment at work is time-consuming and difficult. Good employers who are prepared to take reasonable steps to protect their staff from abuse have nothing to fear from the current provisions. Will the noble Baroness please explain to the Committee how such a matter might be resolved without this part of the legislation?