Worker protection and third party harassment

The Telegraph has reported that ministers are getting cold feet about the new proposal to introduce the ability to claim against employers for third party harassment under the Worker Protection (Amendment of Equality Act 2010) Bill.

Third party harassment is where an employer is held responsible for the acts of somebody, perhaps a customer or supplier, who is not actually their own employee.

There is concern of the potential financial cost to employers should this proposal become law.

Third party harassment has a long history in an employment context. The case of Burton v De Vere Hotels was the historic high-point – where female waiting staff were successful in claiming racial harassment against their employer because of the on-stage behaviour and language of Bernard Manning, which the hotel putting on the event did nothing to stop. However, there have always been problems with the issue of control: how much control can an employer realistically exercise over third parties who may attend their premises or interact with their employees?

Between 2008 and 2013 there was a limited right to claim against the employer for third party harassment based on a ‘three strikes’ rule: employees had a right to claim if they suffered a third incident of harassment where the employer already knew of two previous incidents.

Under the proposal as it currently stands, liability for harassment by third parties will arise without there needing to be a prior incident, unless the employer can show they took all reasonable steps to prevent the harassment taking place. The test will be similar to that which exists for straightforward harassment by fellow employees. However, it remains to be seen how the concept of ‘reasonable steps’ will be treated given the inherent lower level of control that employers have over persons who are not their employees.

Regardless of what the future holds for this element of the Bill, there are obviously good employment relations reasons behind not wanting your employees to be exposed to harassment from third parties in the workplace. A poor workplace culture impacts on employee satisfaction and engagement, leading to high staff attrition rates and low productivity. There is also the related health and safety obligation to provide a safe place of work and the implied term of mutual trust and confidence which must be borne in mind in all of your dealings with your staff.