Provisions in the Equality Act 2010 making employers liable for third party harassment are abolished from today, although there has been hardly any support for their repeal.
As part of its ‘red tape challenge’ to remove unnecessary regulation, the government launched a consultation back in 2012, proposing to remove the third party harassment provisions on the grounds that they had been introduced without any real or perceived need.
The consultation, however, revealed that was hardly any support for repeal, with 71 per cent opposed to it. But the government pressed ahead, arguing that the provisions impose additional liabilities on employers, hindering business growth and economic recovery. So the Enterprise and Regulatory Reform Act 2013 abolishes the third party harassment provisions from 1 October 2013. But the reality is that the law can still protect employees who are abused by customers and suppliers, so the repeal may not have the benefits the government anticipates.
Under the third party harassment provisions, an employer’s liability for the harassment of its employees by third parties (such as customers or clients) only arose when harassment had occurred on at least two previous occasions, the employer was aware that it had taken place, and had not taken reasonable steps to prevent it happening again.
Diversity is a core value for most organisations and, in truth, there has always been some unease about the third party harassment provisions because they work on a ‘three strikes and you’re out’ basis – in other words, the employee had to have been harassed on three occasions (even though the employer may have tried to stop it) for the law to bite. Harassment is demeaning and degrading from any perspective, so having to endure it three times from a third party is not exactly supportive of a diverse culture.
However, the benefit of having a specific legal provision is that it brings home to employers that they may be liable for harassment by third parties over whom they have no control. It also allows employees to understand that there is legal protection in such circumstances. But all is not lost, as there are other legal avenues that can be pursued.
From 1 October, in circumstances where an employer fails to prevent third party harassment, there are two potential claims which can be lodged under the Equality Act 2010:
- a direct discrimination claim, where the employer failed to act because of a protected characteristic, which results in less favourable treatment of the employee concerned when compared to how others were (or would have been) treated
- a harassment claim, on the basis that the employer's inaction amounts to unwanted conduct related to a protected characteristic that violates the employee’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
Employees may also resign and claim constructive dismissal for breach of trust and confidence where they are subjected to third party harassment which the employer ignores. Alternatively, they may call in the police, claiming that a criminal offence has been committed under the Protection from Harassment Act 1997 (this is a course of conduct which the perpetrator knows, or ought to know, amounts to harassment).
Any form of harassment at work, whether from third parties or colleagues, is not acceptable and employers’ aim should be prevention, particularly given the risk of liability. So, even though the provisions have been abolished, employers should be ensuring that with regard to third party harassment:
- their anti-harassment policy expresses zero tolerance
- third parties are informed that harassment will not be tolerated, for example, by including it as a term in commercial contracts, displaying public notices, and so on
- managers are required to intervene if they observe harassment by third parties and employees are asked to report any such behaviour
- any complaint of harassment by a third party is promptly investigated and acted on.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton