UK Employment Law Coffee Break: Harassment laws, autism and work review, and the UK's AI white paper
Published on 13th Apr 2023
Welcome to our latest Coffee Break in which we look at the latest legal and practical developments impacting employers
Proposed reforms to harassment laws: an update
The government is currently supporting a Private Members' Bill – the Worker Protection (Amendment of the Equality Act 2010) Bill – through Parliament which will:
- make employers liable for harassment of their employees by third parties;
- introduce a positive duty on employers to take reasonable steps to prevent the sexual harassment of their employees; and
- make provision for a compensation uplift in sexual harassment cases where there has been a breach of the employer duty.
These proposals reflect some of the commitments made by the government in its response to a consultation on sexual harassment in the workplace in July 2021. However, the bill has attracted media attention in the past week over the extent of proposed obligations relating to third party harassment, with the government reportedly under pressure from some members of its party to quietly drop it.
What do the changes mean?
The bill creates new legal liabilities for employers by treating an employer as harassing its employee if the employee is harassed in the course of their employment by third parties (such as customers or clients) and the employer fails "to take all reasonable steps to prevent the third party from doing so".
When the Equality Act 2010 was originally enacted, it included provisions which made employers liable for sexual harassment of their employees by third parties. The provisions included a "three-strikes" rule, in which an employee needed to be the subject of three separate incidents of third party harassment for the employer to be deemed liable. Those provisions were repealed in 2013. This has meant that currently there is no specific protection for employees harassed by third parties and an employer is under no positive legal duty to prevent it.
The bill essentially reinstates employer liability for third-party harassment, but the previous "three-strikes" rule will not apply: instead a single incident of harassment may be sufficient to trigger the new protections, unless the employer can show it took all reasonable steps to prevent the harassment taking place. What is reasonable will depend on the circumstances including the size and resources of the employer.
These new provisions extend beyond just sexual harassment to harassment based on other protected characteristics such as race, sexual orientation etc; this potentially wide scope has attracted media attention with concerns that employers could find themselves on the end of legal claims due to a member of staff simply overhearing offensive or insulting comments made by a third party in the course of their work.
The government has sought to address the "potential chilling effect" the legislation might have on free speech and expression in the workplace through amendments introduced in the House of Lords which would provide that, in certain circumstances, an employer would not be liable if harassment resulted from an employee overhearing conversations at work in which opinions were expressed on “political, moral, religious or social” matters. The amendments would apply to cases of harassment related to the protected characteristics in the 2010 Act, but they would not apply in cases of sexual harassment.
New duty and compensation uplift
The bill also creates a new duty on employers to "take all reasonable steps to prevent sexual harassment" of their employees in the course of their employment.
This duty would be enforced by the Equality and Human Rights Commission (EHRC), but employment tribunals would also be allowed to apply an uplift of 25% to employees' compensation in sexual harassment cases where the employer had failed to uphold this duty.
Given that there is no cap on compensation awards in discrimination claims this could be significant.
What should employers be doing now?
The bill is still currently progressing through Parliament and if it does proceed its main provisions will come into force one year after it is passed.
However, given concerns surrounding issues such as #MeToo and recent agreements reached by the EHRC with organisations to take specific actions in light of harassment claims, employers should use the opportunity to review and consider their existing policies and practices protecting and supporting individuals from harassment by colleagues or third parties. Actions include:
- Review existing policies and practices; do these need to be refreshed, amended or extended to reflect reasonable steps that may be expected of the organisation to prevent harassment and to support employees where harassment arises?
- Consider carrying out risk assessments to identify those employees who interact with third parties and what specific steps may be needed in light of the new duty to prevent third party harassment in this respect.
- Ensure managers and employees receive appropriate training on a regular basis. The EAT has previously confirmed the importance of meaningful up to date training which is not simply a tick box exercise in an attempt to demonstrate reasonable steps.
- Take steps to ensure workplace investigations are managed sensitively and effectively.
- Maintain a central register of complaints to proactively identify areas of risk and measures that should be implemented but subject to compliance with data protection requirements.
- Look out for a consultation on the EHRC Code of Practice on sexual harassment; the government has previously committed to providing a new statutory code which will reflect existing technical guidance published back in 2019.
We are also awaiting legislation around the use of non-disclosure agreements in employment documentation; pending this, employers should ensure that any such provisions comply with requirements from any regulators. Lawyers advising on settlement agreements are required to comply with the requirements of the Solicitors Regulation Authority which lays down specific considerations in this respect. The Legal Services Board is currently planning to consult on how to address the misuse of non-disclosure agreements by lawyers and we are now waiting for more detail on this.
Please do contact your usual Osborne Clarke contact if you would like to discuss these steps further, including any training needs for your organisation.
Autism and work
The government has launched a review designed to boost the employment prospects of autistic people. The Secretary of State for Work and Pensions, Mel Stride MP, has appointed Sir Robert Buckland KC MP to lead the review, which will consider how the government "can work with employers to help more autistic people realise their potential and get into work". With people with autism having a particularly low employment rate with fewer than three in 10 in work, the review will ask "businesses, employment organisations, specialist support groups and autistic people to help identify the barriers to securing and retaining work and progressing with their careers". Issues to be considered include:
- how employers identify and better support autistic staff already in their workforce;
- what more could be done to prepare autistic people effectively for beginning or returning to a career;
- working practices or initiatives to reduce stigma and improve the productivity of autistic employees.
As part of the review it is recognised that many of the adjustments and initiatives that would benefit autistic people could also benefit a wider group of people who think differently, including those with other neurodivergence, such as ADHD, dyslexia and dyspraxia.
Autism (and other forms of neurodivergence) are disabilities for the purposes of the Equality Act and employers therefore have a duty to make reasonable adjustments to enable neurodivergent employees to do their work and feel supported in the workplace.
Some examples of reasonable adjustments include a quiet place to work, noise cancelling headphones, assigning a mentor, showing flexibility around working hours and travel times, providing specialist software, and providing instructions in written format – these are just a few examples and each individual's needs will differ and should be approached sensitively and supportively.
Lack of understanding can make some employers hesitant to employ neurodivergent employees with different requirements, but those who think differently bring particular benefits and innovation to a business and one aim of this review is to support employers employing autistic employees with the consequent boost to their businesses and the wider economy.
The review will start in May with recommendations issued to report to the Secretary of State in September 2023.
What does the UK's white paper on AI propose and will it work?
The UK's long-awaited white paper on artificial intelligence (AI), published on 29 March, has indicated that the government will issue a non-statutory definition of AI for regulatory purposes and a set of high-level overarching principles.
The white paper, "A pro-innovation approach to AI regulation", explains the government's proposal that existing regulators will work the principles into the application of their existing powers and provide the detail. No new laws are planned to regulate the technology, as was signalled in the government's policy statement of July 2022.
Central government support will monitor and evaluate the emerging regulatory landscape around AI, identifying any gaps in regulatory coverage and supporting coordination and collaboration between the regulators.
Businesses have until 21 June to respond to the UK government's consultation on the proposals in the white paper for regulating AI. You can read more here. In our earlier Insight, we also look at considerations for businesses using AI tools in the employment lifecycle.