Equality
Introduction
Clause 26 of the Bill extends the power in Section 49D of the Employment Rights Act 1996 to provide for regulations to protect women during and after a protected period of pregnancy from all forms of dismissal, not just dismissal by reason of redundancy. Further regulations will also provide for the right to protection from dismissal during or after a period of other family leave such as adoption leave, shared parental leave, neonatal care leave and bereaved employees’ paternity leave.
Provisions to prevent harassment are strengthened. In particular, employers will be required to take all reasonable steps to prevent sexual harassment, which mirrors the provisions employers can rely on to defend a claim of harassment.
Significantly Clause 21 amends section 40 of the Equality Act 2010 and will provide workers with protection from all forms of harassment by third parties such as by clients or customers and not just sexual harassment. Disclosure of sexual harassment is also specified as a protected disclosure.
The Equality Act 2010 will be amended to include a new provision that requires employers with 250 or more employees to publish equality action plans in order to advance equality of opportunity between men and women. A new section will make the use of non-disclosure agreements (NDAs) – essentially confidentiality clauses - void in any agreement between an employer and a worker which seeks to prevent a worker from making an allegation or disclosure relating to harassment or discrimination.
What’s included?
The details of protection from dismissal during or after pregnancy and following maternity and other family leave are to be set out in regulations.
These are likely to be along similar lines to the current protections that apply in relation to redundancy. For example, employers are likely to be required to offer alternative employment and a failure to comply with the regulations is likely to result in the dismissal being treated as unfair.
The protection will apply during and after adoption leave, shared parental leave, neonatal care leave and paternity leave available to bereaved parents. Further regulations will cover procedural requirements. Pregnant employees will have a right not to be dismissed during pregnancy and for six months following return to work from maternity leave. The protection will also mean that a woman who has miscarried before informing her employer of her pregnancy should be protected from dismissal. The duty on the employer to take all reasonable steps will apply to sexual harassment by third parties and will mean employers will be under greater scrutiny when defending a claim for sexual harassment in the workplace.
The right to protection from third-party harassment also applies to harassment related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
Any clause preventing the disclosure of an employer’s response to an allegation or disclosure about harassment or discrimination will also be void in any agreement made between an employer and worker. The requirement to publish equality action plans includes plans to address the gender pay gap and support women going through menopause. The form and frequency of such plans will be set out in regulations.
What’s not included?
The prevention of harassment duty on an employer only applies to sexual harassment not harassment related to other protected characteristics. The details of what steps are reasonable for an employer to take to prevent harassment are to be set out in regulations.
The restriction on confidentiality clauses does not apply to disclosures about a failure to make reasonable adjustments, so such clauses won’t automatically be treated as voice.
There is no freestanding right for an individual to bring a claim against an employer in the employment tribunal if it fails to prevent sexual harassment. Only the Equality and Human Rights Commission can take action.
Disclosures about a failure to make reasonable adjustments are not covered so won’t automatically be treated as void. Regulations will provide for exceptions to confidentiality clauses being void. For example, where it is requested by the worker. The statutory questionnaire procedure for requesting information from employers about a potential claim under the Equality Act 2010 has not been re-enacted. While this does not prevent workers from asking questions of employers, a statutory obligation is arguably more effective in eliciting information at the pre-litigation stage and can assist a collective resolution.
Comment
The free-standing right to claim protection from third-party harassment is long overdue having been abolished more than ten years ago and is expected to come into force in October 2026. While the detail of the reasonable steps employers are required to take to meet the preventative duty are to be set out in regulations not due to come into force until 2027. In the meantime, Union equality and health and safety reps can use the EHRC technical guidance on harassment to negotiate with employers to prevent harassment now.
Enhanced protection from dismissal for pregnant women and employees taking family leave are not expected to come into force until 2027. The roadmap does not include a timetable for implementing the non-disclosure provisions. In preparation for the Equality (Race and Disability) Bill the government launched a consultation on how to introduce mandatory ethnicity and disability pay gap reporting and a call for evidence on the scope of the Bill. Both of these closed in June. The requirement on large employers to produce action plans will be backed up by a Regulatory Enforcement Unit for equal pay. This unit will be crucial to ensuring that government plans to clamp down on outsourcing services which seek to avoid equal pay are effective.
Further initiatives are planned to enable disabled workers and people with health conditions to be supported in the workplace. While there is always more that can be done to improve equality this certainly feels like a step in the right direction and a welcome relief after 14 years of regression.
