Third-party harassment – Who is Liable?
As part of ongoing attempts to support growth and economic recovery by reducing red tape and unnecessary regulation, the Government has decided to remove the provisions of the Equality Act 2010 that can make employers liable for harassment of their employees committed by third parties.
Earlier this year, the Government launched consultation on removing these provisions, stating that, there was “no evidence to suggest that the third party harassment provisions are serving a practical purpose”. It was also suggested that these provisions were not appropriate or proportionate ways of dealing with the type of conduct that they were intended to cover.
As the law currently stands, employers can be found liable if one of their employees has been harassed, in the course of their employment, by a third party. This includes, for example harassment by a customer or a supplier. An employer can be liable if, and only if,
a) they know that the employee has been subjected to such conduct on at least two prior occasions (although not necessarily by the same third party); and
b) they have not taken reasonable steps to prevent the employee being subject to such conduct again.
The consultation is now complete and the Government response released this month confirms that they will repeal the provisions, although a date for doing so has not yet been announced. The Government believes that, following the repeal, employees subject to third party harassment will still be protected and able to bring a claim (most likely general harassment under the Equality Act 2010 or constructive dismissal).
We will be setting out the implications of these changes in a future e-bulletin.