Third party harassment – where are we now?

Employers can be liable for discriminatory acts (including harassment) carried out by employees in the course of their employment. An employer may have a defence if it can show that it took ‘all reasonable steps’ to prevent the employee from carrying out the discriminatory act.

There were previously provisions in the Equality Act under which employers could also be liable for harassment of employees carried out by third parties, such as customers or clients. However, those provisions were repealed in 2013.

We reported in February this year that the Government was backing a Private Members Bill that would (if passed) reintroduce the concept that an employer can be liable in certain circumstances for the harassment of employees by third parties such as customers or clients, over whom the employer does not have direct control.

The Bill also created a new duty on employers to take all reasonable steps to prevent sexual harassment of their employees.

Third-party harassment provisions

Following a debate in the House of Lords on 14 July, two amendments have been made to The Worker Protection (Amendment of Equality Act 2010) Bill. The amendments are understood to reflect compromise reached to ensure the safe passage of the Bill through Parliament. The amendments are:

The provisions reintroducing third party harassment liability on employers have been removed from the Bill. During the debate, concerns expressed about the provisions included that they had a ‘pernicious and consequential chilling effect on free speech’. Baroness Scott of Bybrook stated ‘I therefore assure my noble friends that we hear the level of concern that has been expressed about the reintroduction of third party harassment. While the Government believe it important that workers be protected against this form of harassment, having heard the debate, I recognise the strongly held views of those who have spoken.’
The provisions setting out the new statutory duty on employers to prevent sexual harassment of employees in the course of their employment remain. However, employers will have a defence if they can show that they have taken ‘reasonable steps’, rather than ‘all reasonable steps’, to prevent that harassment. It is not clear what the practical impact of this amendment will be. However, Baroness Scott of Bybrook stated ‘While it could be said that the duty … to take “reasonable steps” is a lower bar than “all reasonable steps”, it has to be remembered that this will be a new duty. As such, a duty to take reasonable steps is still an improvement for employees in respect of sexual harassment, compared to the status quo.’

Comment

One comment made during the debate was that the amendments to the Bill would still indicate ‘a serious resolve to tackle sexual harassment while restricting the burdens on business and protecting the principle of free speech.’ If passed in its current form, the Bill will no longer re-introduce liability for employers for harassment of employees by third parties.

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25 July 2023

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