This meant that employers could be potentially liable for harassment of their employees by people (third parties) who aren't employees of the company, such as customers or clients. It also meant that:
- Employers could be liable for acts of harassment by their employees, even outside of normal working hours
- Employers will only be liable when harassment has occurred on at least two previous occasions and they were aware that it has taken place but did not take reasonable steps to prevent it from happening again.
After consultation, the government repealed this (Section 40) on 1st October 2013.
The government believed this legislation was unnecessary, where employers could be held responsible for repeated harassment of an employee by someone who they had no control over, and that legal remedies were already available to an employee in this position. These provisions, they argued, hadn’t been much used.
What does this mean?
- Claims already in the system, where the third-party harassment happened before 1st October 2013, can continue
- New claims cannot be made after this date.
Workers who are harassed by a third party may still be able to bring a claim against their employer in the following ways:
- If an employee is harassed by a third party and the employer takes no action to prevent this happening or continuing, an employee could claim at an Employment Tribunal that the employer's failure to do so was 'unwanted conduct' related to their 'protected characteristics' (e.g. race, sex, age etc), and therefore a breach of the general anti-harassment provisions in the Equality Act. As an example, a female employee is subject to sexist remarks from a client, but she is 'sent back' to the client against her will and is again subjected to the same remarks. Sending her back is 'unwanted conduct'
- Similarly, an employee could argue that being put in a situation which subjects them to third-party harassment constitutes 'direct' discrimination under the Equality Act on the grounds that the reason their employer put them in that situation was because of their protected characteristic (for example being placed in a situation where an employee experienced harassment from a customer or client is being subjected to a detriment)
- An employee could claim that the employer's failure to take reasonable steps to prevent it constitutes a fundamental breach of contract, which entitles the employee to resign and claim constructive dismissal (and unfair dismissal if they have the required length of service).
The Protection from Harassment Act 1997
In addition, The Protection from Harassment Act 1997 provides that a person mustn't pursue a course of conduct which amounts to harassment of another, which they know (or ought to know) amounts to harassment. Liability under this Act can either be a civil or criminal offence. An employee would, though, need to bring a claim against the third party directly (not their employer). This act prohibits the pursuit of a "course of conduct which amounts to harassment of another".
Harassment is conduct that causes alarm or distress and a course of conduct must involve such conduct on at least two occasions. This Act was originally introduced to deter stalkers, but it also applies to workplace harassment. In 2015, the Court of Appeal heard the case Levi v Bates, and found that an employer could be vicariously liable under this Act for harm caused by an employee harassing a colleague, including harm caused to another person. The Court ruled for the first time that an indirect victim of this harassment could be able to claim damages under the Act.
Before the Third Party Harassment provisions existed, employees could rely on case law (for example, Burton and Rhule v De Vere Hotels) and it's likely this will be relied on again.
In the Burton and Rhule v De Vere Hotels case, two black employees worked as waitresses where a well-known comedian provided the entertainment at a hotel function. He made many sexist and racist comments, some of which were directed at the two employees.
The Employment Appeal Tribunal found that the Hotel group was liable for subjecting the employees to an environment where sexual and racist harassment took place, even though the harassment was from a third party. The EAT said the test was whether the Employer had control over the event, whether it could control if the harassment occurred or not; and decided the hotel did have sufficient control.
As usual, these situations this will no doubt be complicated, so you're advised to take appropriate advice before proceeding.
Employers are advised to have a harassment policy, to investigate any complaints of third party harassment by employees, and to consider if any action can be taken to prevent the harassment from continuing.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk (click here) - a Human Resources Consultancy for small businesses – you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.