ILO Violence and Harassment Convention: the potential implications for employers

The UK has ratified the International Labour Organization’s Violence and Harassment Convention (the convention), meaning it comes into force on 7 March 2023. The convention, which is a binding international treaty, recognises that everyone has the right to a workplace that is free from violence and harassment and provides a global common framework for action to eradicate it. The UK is the 11th country in the world, and the 3rd country in Europe, to ratify the convention. Now that the convention has been ratified, the UK is bound by it for a minimum of 10 years and must make regular reports to the ILO on its implementation progress. The convention is accompanied by a non-binding Violence and Harassment Recommendation, 2019. This article summarises the convention and explores the impact it may potentially have in the UK regarding workplace harassment claims.

How does the convention define ‘violence and harassment’? 

The convention defines violence and harassment in the world of work as, ‘a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment’.

Gender-based violence and harassment is in turn defined as ‘violence and harassment directed at persons because of their sex or gender or affecting persons of a particular sex or gender disproportionately and includes sexual harassment’.

It is worth noting that apart from sex or gender-based violence and harassment, the convention does not appear to require any link between the violence and harassment and a protected characteristic. The convention therefore appears to be wider than the harassment provisions of the Equality Act 2010, which do require that the prohibited harassment is ‘related to’ a protected characteristic. Further, although the Protection from Harassment Act 1997 has been held to apply to harassment and bullying at work which is not related to a protected characteristic, this legislation requires there to have been ‘a course of conduct’ on at least two occasions, whereas the convention applies to ‘a single occurrence’ of workplace violence or harassment. Taken together, this means that our domestic legislation does not appear to go far enough to comply with the convention. Could we see future legislation specifically designed to protect workers from a single act of violence or harassment which does not relate to a protected characteristic?

Who does the convention protect?

The category of individuals who fall within the protection of the convention is wide. The convention protects ‘workers and other persons in the world of work, including employees… as well as persons working irrespective of their contractual status, persons in training, including interns and apprentices, workers whose employment has been terminated, volunteers, jobseekers and job applicants, and individuals exercising the authority, duties or responsibilities of an employer’.

In this way, the scope of the convention appears to be somewhat wider than that of the Equality Act 2010, which has been held not to apply to those who are truly self-employed (Secretary of State for Justice -v- Windle and Arada [2016] EWCA Civ 459), or volunteers working under a non-contractual volunteer agreement (X -v- Mid Sussex Citizens Advice Bureau and anor [2012] UKSC 59). 

The convention also has a wide sectorial scope - it applies to workers who are working in ‘all sectors, whether private or public, both in the formal and informal economy, and whether in urban or rural areas’.

What does the convention require the UK government to do?

Article 4 of the convention requires the UK government to ‘respect, promote and realize the right of everyone to a world of work free from violence and harassment’. The government must also adopt ‘an inclusive, integrated and gender-responsive approach for the prevention and elimination of violence and harassment in the world of work. Such an approach should take into account violence and harassment involving third parties, where applicable, and includes:

1. prohibiting in law violence and harassment
2. ensuring that relevant policies address violence and harassment
3. adopting a comprehensive strategy to implement measures to prevent and combat violence and harassment
4. establishing or strengthening enforcement and monitoring mechanisms
5. ensuring access to remedies and support for victims
6. providing for sanctions
7. developing tools, guidance, education, and training, and raising awareness, in accessible formats as appropriate
8. ensuring effective means of inspection and investigation of cases of violence and harassment, including through labour inspectorates or other competent bodies”.

The express reference in article 4 of the convention to violence and harassment involving third parties is significant. Readers may recall that the original third-party harassment provisions contained in the Equality Act 2010 were repealed in October 2013 by the coalition government, which argued that they imposed additional liabilities on employers, hindered business growth and economic recovery. However, in its 2021 response to its consultation on sexual harassment in the workplace, the government stated its intention to re-introduce workplace protections against third-party harassment when parliamentary time allows. Therefore, it seems likely that we will see new third-party harassment provisions implemented soon. 

With a view to preventing and eliminating violence and harassment in the world of work, Article 5 of the convention requires the UK to ‘respect, promote and realize the fundamental principles and rights at work, namely freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation, as well as promote decent work’.

Article 6 requires the UK to ‘adopt laws, regulations and policies ensuring the right to equality and non-discrimination in employment and occupation, including for women workers, as well as for workers and other persons belonging to one or more vulnerable groups or groups in situations of vulnerability that are disproportionately affected by violence and harassment in the world of work’. 

The convention requires the UK to ‘adopt laws and regulations to define and prohibit violence and harassment in the world of work, including gender-based violence and harassment’ (Article 7), and ‘take appropriate measures to prevent violence and harassment in the world of work’ (Article 8). 

Further Article 9 requires the UK to ‘adopt laws and regulations requiring employers to take appropriate steps commensurate with their degree of control to prevent violence and harassment in the world of work, including gender-based violence and harassment, and in particular, so far as is reasonably practicable, to:

1. adopt and implement, in consultation with workers and their representatives, a workplace policy on violence and harassment
2. take into account violence and harassment and associated psychosocial risks in the management of occupational safety and health
3. identify hazards and assess the risks of violence and harassment, with the participation of workers and their representatives, and take measures to prevent and control them
4. provide to workers and other persons concerned information and training, in accessible formats as appropriate, on the identified hazards and risks of violence and harassment and the associated prevention and protection measures, including on the rights and responsibilities of workers and other persons concerned in relation to the policy.”

The government has already announced its intention to introduce a duty requiring employers to prevent sexual harassment but Article 9 is not limited to sexual harassment, its requirements go much further than this. Further, there is no current domestic law which requires an employer to have a workplace policy on violence and harassment, although many do adopt such a policy voluntarily.  

What does this mean in practice for employers?

There are no immediate implications for employers because individuals cannot rely on the convention directly to support a claim. However, the ratification of the convention illustrates the direction of travel in this sphere of labour relations. For the reasons noted above, it does not appear that our existing domestic law regarding workplace violence and harassment is wide enough to fully implement the requirements of the convention. Therefore, we may see amending legislation introduced to widen its scope to match the much wider scope of the convention. Meanwhile, the ILO has published detailed guidance on the convention.