Repeal of third-party harassment provisions

The controversial third-party harassment provisions under the Equality Act 2010 (the Act) are set to be revealed on 1 October 2013, which will be welcome news for many employers.

The controversial third-party harassment provisions under the Equality Act 2010 (the Act) are set to be revealed on 1 October 2013, which will be welcome news for many employers.

Under the Act, employers could be liable for harassment by third parties, such as clients, over whom the employer has little control. Liability for third-party harassment arose where:

• the third party had previously harassed the employee on two occasions; and
• the employer had failed to take reasonable steps to prevent the harassment.

Following the legislation’s repeal, the position for employers will go back to that set by the case of Pearce v Mayfield School (2003). That is, where a third party commits an act/acts of racial or sexual harassment towards an employee, an employer’s conduct will be only be discriminatory where it fails to prevent such harassment because of the employee’s race or sex.

Further, there remains a duty on employers under the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees and a broader implied duty to provide a suitable working environment for employees.

Where employers fail to take reasonable steps to protect their employees from unacceptable treatment, this could give rise to a constructive dismissal claim.

Therefore, employers must still take care to reasonably safeguard their employees from acts of discrimination by third-parties. This may be by way of risk assessment or by putting in place a proper framework for employees to report any concerns they may have.