Third Party Harassment and Relief for Employers

Employers were concerned that they would be held wholly responsible by the courts over a third party’s conduct.  The Lords’ amendment has therefore come as relief to employers; however, this only highlights the emphasis on the need for having robust policies and procedures implemented in the workplace to protect employees where there is evidently growing concern over third party actions against employees.

Background

Protection from harassment, including sexual harassment, which has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment” has been long established under the Equality Act 2010 (EqA) in relation to the protected characteristics of age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

It is a well-established fact that the employer can be vicariously liable for employees who harass others.  However, currently employers are not liable for harassment from third parties.  This was not always the case as the EqA did originally contain a provision regarding third party harassment and employers were liable if they either failed to take reasonably practicable steps to prevent it; or knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party.  This was known as the 3 strikes rule, but this did not last very long and was subsequently repealed 3 years later.

The Bill

The Government introduced the Bill on 6 September 2022, which sought to reintroduce employer liability for third party harassment; but on a wider basis, without the requirement for the employer to have knowledge of previous occasions of harassment, or 3 strikes.  This included any ‘unwanted conduct’ already prohibited by the EqA from a third party, such as a customer, client, supplier or contractor to an employee or an individual who has applied for employment.

A number of employers noted how far reaching the proposed Bill was because if a customer inadvertently makes a comment, the employer might be liable.  Such conduct by third parties to employees includes all forms of unlawful harassment, including racial harassment and offensive conduct based on age, disability or gender.

Amendments

On 14 September 2023, the House of Lords amended the Bill and removed the proposed clause in relation to third party harassment provisions and also reduced the duty on employers to prevent sexual harassment.

In relation to sexual harassment, it was originally proposed that employers had to take “all reasonable steps” to prevent sexual harassment, but the House of Lords lowered the threshold for employers and they are now proposed to simply “take reasonable steps”.

The Lords’ objections to the proposed Bill included the cost to businesses, restriction of free speech and worries about excessive state intervention in business.

The Bill will now revert to the House of Commons for consideration and it remains to be seen if the Commons will re-introduce the third party harassment provision.  This seems unlikely due to the growing discontent among MPs due to the impact on businesses.

What does this mean for employers?

Whilst the recent amendments remove employers’ liability for third party harassment, they remain subject to the imposed duty to prevent sexual harassment, albeit, under a lowered threshold.

Despite these changes, the proposal and ongoing consideration of the Bill sends a clear message that employers should not forget their obligations under current legislation to protect employees in the ever-changing landscape of employment law.  This would involve having updated and robust policies and procedures to combat harassment and sexual harassment within the workplace, ensuring that such policies and procedures are communicated to the workforce.

If you would like a specific review of your current workplace policies and measures to deal with harassment within the workplace, or would like further advice as to your responsibilities, please ​contact us to speak to a member of our Employment Team.