My Lords, I am grateful to the noble Baroness, Lady Thornton, and others who have put their names to this clause stand part debate today. It gives me an opportunity to make clear that Clause 57 does not diminish people’s right to equal treatment, or their access to justice, when they believe that they have encountered discrimination. The aim of this clause is to achieve these outcomes in a more straightforward and cost-effective way.
Clause 57 removes the specific but arbitrary “three strikes” test for employer liability. I should like to reassure the Committee that it does not remove protection for employees who have been harassed by third parties at work. The noble Baroness, Lady Thornton, asked me a specific question about whether the repeal is consistent with the equal treatment directive. I can confirm that it is.
The ruling of the court in the case of Equal Opportunities Commission v Secretary of State for Trade and Industry in 2007 stated that,
“there is nothing explicit, or even arguably implicit”,
in the European equal treatment amendment directive,
“requiring a Member State to impose vicarious liability on an employer, or indeed liability for negligent failure to take steps”.
However, under the Equality Act 2010, employers are vicariously liable for the harassment of one employee by another. We maintain that the general harassment provisions in the Act can provide protection for an employee who has been harassed by any other third party. If the harassment causes the employee alarm or distress, a claim may be possible under the Protection from Harassment Act 1997. Where it is such that the employee feels there is no alternative to leaving the job, a claim for constructive dismissal can be brought. All this protection will remain, and that is why the third-party harassment provisions in Section 40(2) to (4) of the Equality Act are not needed.
Indeed, introduction of the “three strikes” test was itself unnecessary because a change in the legal definition of harassment in 2008, following a judicial review, allowed a wider range of claims. The then Government added the “three strikes” test to the harassment provisions in the Sex Discrimination Act 1975 specifically to address a set of facts referred to in the judgment. In our view this introduced an additional legal test that is both arbitrary and unnecessary.
The new definition of harassment following the change in the law in 2008 referred to unwanted conduct “related to” the sex of a person. That was instead of “on the grounds of”. This specific change extended the scope of protection against harassment to apply to wider circumstances than before, including potentially by a third party. This formulation now exists in the Equality Act 2010 and therefore applies to all the relevant protected characteristics, not just to sex.
The “three strikes” test was introduced to cover only the situation where, knowing that an employee is being repeatedly harassed at work, the employer does not take any reasonable steps to prevent that employee being harassed again. However, the extremely limited scope of these provisions is widely misunderstood and some businesses have also told us that they find it impossible to comply with the provisions in practice, no matter how they try. Most businesses recognise that they must not let their employees be harassed or ill treated by other employees or by third parties. Where this is not the case, the other legal protections that I have set out will continue to exist. However, they see the unique “three strikes” test as onerous, arbitrary and unfair. It expressly makes the employer liable for a specific number of actions—three—by a third party. In most cases the employer will have no control over the nature or number of events or the third parties concerned. The uncertainty over what exactly is required in order to avoid being caught out by the “three strikes” test makes it difficult for employers who want to comply and at the same time will not deter employers who may be less concerned about their obligations to their staff.