Third party harassment provisions in Equality Act repealed….but possibly coming back in 2024!

(Updated November 2023 – see below)

The 2010 Equality Act contained the concept of Third Party Harassment, where employers could be held liable for harassment of their workers by 3rd parties.  This meant that employers could be potentially liable for harassment of their employees by people (third parties) who are not employees of the company, such as customers or clients.

After consultation, the Government has repealed this (Section 40) as of 1st October 2013, and this regulation will no longer apply. We look at the details here.

What does this mean?

• Claims already in the system, where the third-party harassment happened before 1st October 2013, can continue
• New claims cannot be made after this date.

Workers who are harassed by a third party may still be able to bring a claim against their employer in the following ways:

• If an employee is harassed by a third party and the employer takes no action to prevent this happening or continuing an employee could claim, at an Employment Tribunal, that the employer’s failure to do so was ‘unwanted conduct’ related to their ‘protected characteristics‘ (e.g. race, sex, age etc) and therefore a breach of the general anti-harassment provisions in the Equality Act (for example a female employee is subject to sexist remarks from a client, but she is ‘sent back’ to the client against her will and is again subjected to the same remarks. Sending her back is ‘unwanted conduct’).
• Similarly, an employee could argue that being put in a situation which subjects them to third-party harassment constitutes a ‘direct’ discrimination under the Equality Act, by the employer, on the grounds that the reason their employer put them in that situation was because of their protected characteristic (for example being placed in a situation where an employee experienced harassment from a customer or client is being subjected to a detriment).
• An employee could claim that the employer’s failure to take reasonable steps to prevent it constitutes a fundamental breach of contract, which entitles the employee to resign and claim constructive dismissal (and unfair dismissal if they have the required length of service).

November 2023 update –

The Worker Protection (Amendment of Equality Act 2010) Bill comes into force in October 2024, that introduces a new duty on Employers to take reasonable steps to prevent their employees (and workers) being sexually harassed “in the course of their employment”.  The sexual harassment included is limited to unwanted conduct of a sexual nature which has the purpose or effect of violating the individual’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

The ‘reasonable steps’ that an Employer needs to undertake is unclear as it has not been defined! However, the Equality and Human Rights commission (EHRC) will update its guidance on sexual harassment and harassment at work to include the steps Employers should take to comply with the law.

The law does not apply to sexual harassment to an employee by another employee, it appears to be connected to sexual harassment by other third parties.  An employee cannot bring a claim to an Employment Tribunal for this, a claim would need to be brought by the EHRC.  More details to follow if this ever becomes law!