On 1 October 2013 sections 40(2) – 40(4) of the Equality Act 2010 (the Act) that dealt with third party harassment were repealed.
These provisions held employers vicariously liable for third party harassment if an employee had been harassed by a third party (such as a customer, contractor or supplier) during the course of their employment on at least two previous occasions and despite the employer being aware, the employer had taken no reasonable steps to prevent the behaviour. Significantly, the harassment did not need to be by the same third party or be of the same nature.
The repeal comes as a result of a Government consultation carried out in 2012 and despite a majority response (71%) being opposed to the provisions being repealed, the Government proceeded with its plans. There are transitional provisions which provide that third party harassment prior to the 1 October 2013 will still be covered under section 40 of the Act.
Whilst it is good news for employers that there is now no express liability for third party harassment under the Act, the repeal does bring some ambiguity to this area of law and claims are still likely to be brought in different forms. This can include such claims as harassment under the general harassment provisions of the Act in that an employers inaction in relation to third party harassment is likely to amount to unwanted conduct “related to” a protected characteristic that violated the employee’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them. This can be the case regardless of whether the employer knew that the employee had been harassed by a third party before.
Alternatively employees may be able to bring claims for direct discrimination if an employer fails to act because of a protected characteristic, which results in less favourable treatment or indirect discrimination, if it is argued that an employers inaction is a provision, criteria or practice which placed the employee at a disadvantage as a result of a protected characteristic.
In order to limit liability for harassment in the workplace employers should ensure that they have an anti-harassment policy in place and that it is well publicised and followed. Employers should also look to include anti-harassment provisions in any service contracts with third parties.
Any complaints of harassment should be investigated and acted upon promptly and employers should encourage employees to report any third party harassment and take reasonable steps to prevent it.
If you want further advice on this matter or want to look to implement an anti-harassment policy, or wish to discuss wording to include in any contracts with third parties, please contact a member of the team.