The Worker Protection (Amendment of Equality Act 2010) Bill: significance for licensees

The Worker Protection (Amendment of Equality Act 2010) Bill, when enacted, will make employers liable for harassment of their employees by third parties on their premises, including sexual harassment. This is a very important piece of amending legislation which may have serious implications for business owners in the hospitality sector.

The proposed legislation seeks to amend the Equality Act 2010, which among other things imposes a legal duty on employers (e.g. bar owners) to protect workers (e.g. bar staff and waiters) from harassment by other employees. The legislation defines harassment as “unwanted conduct relating to a protected characteristic” (i.e. age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.

This duty will be expanded under the amendment, rendering bosses additionally liable for harassment of their employees by members of the public (i.e. third parties) that they encounter while doing their jobs. The Bill seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act 2010, including overheard conversations. If the Bill becomes law, employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but also by third parties. The third-party liability applies to all forms of unlawful harassment, including racial harassment and offensive conduct based on age, disability or gender.

When does “banter” cross the line?

The conduct constituting the harassment must involve a conversation in which the bar staff/waiter is not a participant, or a speech which is not aimed specifically at that person AND the conversation or speech involves the expression of an opinion on a political, moral, religious or social matter AND the opinion expressed is not indecent or grossly offensive, AND the expression of the opinion does not have the purpose of violating the employee’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee.

The Bill also includes provisions relating to sexual harassment. Employers should have policies in place to address this when it occurs and also ensure employees are aware of the procedure should such a situation arise.

However, the proposed legislation creates difficulty for restaurant and pub owners when the onus is ultimately placed on them to have a policy in place preventing customers expressing a political opinion that may upset a member of staff. Employers in the sector will be handed the impossible challenge of policing conversations in their establishment.

Employers could also face pre-emptive action from staff if there is no policy in place to deal with remarks made. Therefore, it is vital employers begin to consider how this legislation could impact their business and what policies regarding this legislation should contain to avoid such claims. Whilst employers have a duty of care to their employees, how those in the hospitality sector can manage the conversations had by customers remains to be seen.

If you are concerned about the impact of the Workers Protection Bill (Amendment of Equality Act 2010) Bill on your hospitality business, please contact Gareth Hughes.