Is it your boss’s responsibility to protect you from offence?

Some readers will recall the furore five years ago about the Presidents Club charity dinner at the Dorchester. The Financial Times sent two undercover journalists to work as ‘hostesses’ at the annual fundraiser and their report made uncomfortable reading for the big hitters in attendance, including Nadhim Zahawi. It was not just a men-only event, but the 130 hostesses were instructed to wear skimpy black outfits with matching underwear, and several were groped, sexually harassed and propositioned at a party following the dinner. In the ensuing scandal, the co-chairman resigned as a non-executive director of the Department for Education and one guest was removed from the Labour front bench in the Lords.

But the waitresses couldn’t sue the Presidents Club because employers aren’t liable for the harassment of their workers by third parties. Indeed, a warning in the event’s brochure made this clear, asking the guests not to molest staff and cautioning them that the club would accept no liability if they were sued for sexual harassment.

This state of affairs, which many would accept is wrong, is about to change. Thanks to government support, a private members’ bill by the Lib Dem MP Wera Hobhouse to protect employees from third-party harassment sailed through the Commons last week and is on its way to the Lords. Unfortunately, it poses a grave threat to free speech.

The difficulty arises because the legislation Hobhouse and the government are proposing to amend is the Equality Act 2010. Among other things, this imposes a legal duty on employers to protect workers from harassment by other employees, defined as ‘unwanted conduct relating to a protected characteristic’ (age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) if that conduct has the purpose or effect of ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’.