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Tag: Third party harassment

Parliament is close to re-instating an employment protection that many of you might not have realised was lost.  In this blog, Anne-Marie Boyle expands on the background, the proposed legislation and looks at the potential implications for employers.

 

Equality Act protections repealed in 2013

Under the Equality Act 2010, Section 40, a limited statutory protection was established for employees against third party harassment that extended to all the protected characteristics (save for marriage and civil partnership and pregnancy and maternity).  Section 40 provided that employers were liable for third party acts of harassment against their employees but only (oddly) if the employee had been harassed on at least two other occasions.  It really was a ‘three strikes and you’re out’ law!

It essentially meant that an employer was under an obligation to stop repetitive harassment by third parties and would be liable where: (1) the claimant had experienced harassment relating to one of the protected characteristics during the course of their employment; (2) there had been two previous incidents of harassment (not necessarily by the same third party) of which the employer knew; and (3) the employer had failed to take reasonably practicable steps to prevent the harassment.

This Equality Act provision was repealed in 2013. Since this time, case law has made it clear that there is no current explicit liability on an employer for failing to prevent third party harassment.  However a new Private Members Bill could change that.

New Private Member’s Bill – what is being proposed?

In July 2021 the Government indicated (in its response to a consultation on sexual harassment in the workplace) that when parliamentary time allows, legislation would be introduced to make employers liable if they fail to take reasonable steps to prevent harassment by a third party such as a customer or a service-user. An individual would be able to take legal action against their employer after an incident occurred.

Following this, the Government in the Autumn of 2022 indicated that it was lending its support to a private member’s bill by Wera Hobhouse MP, the Worker Protection (Amendment of Equality Act 2010) Bill which has made it through its second reading. 

Ms Hobhouse has championed the improvement of workplace protections, particularly for female workers.  Research by the Fawcett Society has suggested at least 40% of women have experienced workplace sexual harassment and there are a myriad of other data sources about workplace harassment which make for grim reading.

This Bill would indeed make an employer liable for harassment by third parties on the grounds of any of the protected characteristics, unless reasonable steps had been taken to prevent the harassment. The Bill would also place a duty on employers to take all reasonable steps to prevent harassment of a sexual nature. This duty would be enforced by the Equality and Human Rights Commission, but in addition, if an employment tribunal found an employee’s claim of harassment of a sexual nature proven and also that the employer had failed to discharge this duty then the tribunal would be empowered to award an uplift in compensation. It time permits, it is likely that this will become law during this Parliamentary year.

 

The implications for employers – and practical suggestions to help employers prepare

Very few employers work in a vacuum.  Most have customers, clients, service users. suppliers, distributors – I could go on.  All these people could have contact with your employees, and, in theory harass them.  The purpose of the new legislation is to protect employees who are simply doing their jobs.  The debates on this topic really came to life in the 90’s when a black waitress working at an event complained about racial harassment from Bernard Manning and guests during one of his gigs.  The case was Burton v De Vere Hotels 1996 and shines a light on a truly horrific work environment.

It is important to remember that liability will not be automatic here.  It will land on employers where they have failed to take reasonable steps to prevent the harassment.   Therefore, a good starting place to establishing this defence is always going to be these sorts of actions:

  1. Have an up to date Equality and Diversity Policy and share it with your employees AND with your third party contacts
  2. Review your policy regularly. Have a senior person named as being responsible for overseeing the policy
  3. Proactively identify the risk of harassment by role and circumstances. Think through specific measures to help protect them (consider consulting on this)
  4. Where applicable, ask your suppliers, for a copy of their Equality and Diversity policy. If they don’t have one – challenge them on it.  If they don’t show any interest in having such a policy that is very telling! Perhaps you should move your business elsewhere?
  5. Training, training, training.   Ensure that all employees with a managerial or supervisory role have appropriate Equality Diversity and Inclusion training.  Make sure they can spot harassment and know what to do if an employee reports a problem
  6. Ensure all employees are signposted to where they need to go if they believe they are being harassed
  7. With some businesses, for example, where employees work on a client’s site, it will be advisable to conduct a risk assessment and to include the potential for third party harassment as a possible risk to be assessed.

Even if this new Bill does not get passed, all of the above will make your workplace a much safer environment for ALL your employees.

If you’d like to talk to me about any aspect of the above or about our Equality, Diversity & Inclusion training, please get in touch.

 

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