What is Third Party Harassment?
Third party harassment can happen in the workplace when someone other than the employer harasses an employee, so for example harassing treatment received by customers, clients or suppliers.
What is the current legal position?
When the Equality Act 2010 came into force, it did initially contain some protection for employees against harassment by third parties in the workplace, however for employers to be held liable an employee needed to show that the employer was aware of 2 or more previous instances of third party harassment, and that the employer had not taken action to prevent it.
From 1 October 2013 these provisions were removed from the Equality Act 2010. As a result, and which remains the position today, employers cannot be held liable for harassing actions of their employees by third parties, who are not employed by them (or are not their agents).
Proposals to re-introduce third party harassment liability
In 2019 a consultation took place on sexual harassment in the workplace, and the Government responded to this by committing to re-introduce legislative protections against third party harassment. As a result the Worker Protection (Amendment of Equality Act 2010) Bill proposed the following changes:
- To re-introduce protection against harassment of employees by third parties, and this would go further then the previous provisions in that employers could be held liable where a harassing act happened on the first occasion.
- Introduce a proactive duty for employers to take all reasonable steps to prevent sexual harassment in the workplace
What provisions have now been removed from the Bill?
During its passage through Parliament the Bill attracted concerns, including the potential increase in regulatory burden for employers. Following this the provision to re-introduce employer’s liability for harassment of their employees by third parties has been removed altogether,which means there will be no change to the law, and the position on liability for third party harassment will remain as it currently is.
The introduction of the duty for employers to take ‘all reasonable steps to prevent sexual harassment’ within the workplace will continue, however this has been softened, and the word ‘all’ has been removed, so the obligation on an employer will be to take ‘reasonable steps’.
The Bill also proposes that an Employment Tribunal will have discretion to award a 25% uplift to any compensation awarded for a sexual harassment claim where the employer has failed to take such reasonable steps to prevent such actions.
What are the next steps?
The provisions of the Bill (as they currently stand) will come into force 12 months after the Bill receives Royal Assent, and so it is possible the new positive obligation on employers to take reasonable steps to prevent sexual harassment in the workplace could become law by Autumn 2024.
Please look out for further information on these proposed changes and how HR Connect can help you meet your legal obligations.
