Understanding third-party harassment and the proposed law change

Heard the one about the two waitresses whose employer failed to protect them from discrimination by a controversial comedian who told racist jokes at the venue where they were working?

It may sound like the start to a bad joke, but it is a true story and it is certainly not a laughing matter.

In fact, it is an old case that is more than a quarter of a century old, but worth revisiting with a new law on third-party harassment going through the process of being introduced.

The next stage of the process that will see The Worker Protection (Amendment of Equality Act 2010) Bill become law, is due to take place later this week (14 July).

Third-party harassment at work is when someone who is not a colleague or manager, such as a customer, client, patient or business contact, harasses you in the course of your work.

Harassment is when someone’s behaviour is meant to, or has the effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you [1 cited 10.7.23]

Third-party harassment can take many forms, such as verbal abuse, physical violence, sexual harassment or bullying.

The new law will cover all forms of harassment based on protected characteristics covered by the Equality Act 2010 e.g. religion, race or disability [2 cited 10.7.23]

Employers will be liable if a third party harasses an employee when they are working and the employer did not do enough to stop it.

It is a change from the previous law, which was removed in 2013,  and will mean employers have more responsibility for preventing harassment by third parties.

The Worker Protection (Amendment of Equality Act 2010) Bill is now going through Parliament [3 cited 10.7.23]. The changes will not start until one year after it becomes law

The Bill is currently at the committee stage in the House of Lords, and a line by line examination of it is scheduled for 14 July [4 cited 10.7.23]

Third-party harassment has been a long-standing and problematic issue for employers.

A 2018 report by the TUC revealed that workers of any age can be the target of workplace harassment [5 cited 10.7.23]

The study found that 36 per cent of 18-34 year olds who had experienced some form of workplace harassment at the time, said that the perpetrator was a third party.

It was over 25 years ago that a landmark third party harassment case established the principle that employers can be liable for the harassment of their employees by people outside their organisation if they fail to prevent or stop it [6 cited 10.7.23]

The case saw two Black waitresses awarded compensation when the Court of Appeal ruled the hotel where they worked had let the women be racially harassed by the comedian Bernard Manning who told racist jokes about them.

At present UK law on third-party harassment at work is not very clear or strong.

So what is the current law on third-party harassment?

There is no specific law at present, which makes employers liable for the harassment of their employees by parties such as customers, clients or suppliers.

It does not mean the issue can be ignored, because an employer can still be found liable for third-party harassment in some situations.

If the unfavourable treatment is as a direct result of a protected characteristic that is covered in the Equality Act 2010, such as sex, race, disability or sexual orientation, then currently an employer is expected to take reasonable steps to prevent it. A failure to do so can mean the employer is considered legally responsible for what occurred.

An employer can also be found accountable if the harassment amounts to a breach of contract, such as an implied term of trust and confidence or a health and safety obligation, and the employer has failed to take reasonable steps to prevent it.

And if the harassment causes personal injury e.g. physical or psychological harm, and the employer has failed to take reasonable steps to prevent it, then it can be found liable based on the law of negligence.

 Such cases can be difficult to deal with. At present an employee who experiences third-party harassment may not necessarily always have a direct or effective remedy against their employer.

But all organisations should take such complaints seriously and take appropriate action where necessary, and in line with any current policies and procedures to prevent and deal with third-party harassment.

What will the new law change and what exactly will it mean?

It will introduce new duties on employers to prevent harassment at work, including third-party harassment. It has the government’s support.

The Worker Protection (Amendment of Equality Act 2010) Bill would amend the provisions in the Equality Act 2010 to better protect employees from workplace harassment and sexual harassment.

Significant changes will be that it will:

• Create a positive duty on employers to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment.

• Reinstate employer liability for third-party harassment of their employees in the course of their employment, regardless of how many incidents have occurred. Previously under the third party liability provisions in the Equality Act, repealed in 2013, employers needed to know of two previous incidents of third-party harassment before they could be considered liable.

If the bill is passed in its current form, an employee would be able to bring a third-party harassment claim against their employer after a single incident of harassment

• Give employees the right to obtain increased compensation in a sexual harassment claim if their employer has breached the duty to prevent sexual harassment.

• Give the Equality and Human Rights Commission (EHRC) the power to enforce the duty to prevent sexual harassment and issue a statutory code of practice [7 cited 10.7.23]

Why the change in law?

It was drawn up for a number of reasons, which included:

• Recommendations in the Equality and Human Rights Commission (EHRC) report Turning the tables: ending sexual harassment at work in 2018[8 cited 10.7.23]. The report found that sexual harassment was widespread in UK workplaces.
• The emergence and awareness generated by the #MeToo movement and other campaigns against sexual harassment and violence against women and girls.
• The gap in the law created by the repeal of the third-party harassment provisions in the Equality Act 2010 in 2013.
• The evidence from research and consultations that showed that third-party harassment was a serious and common problem, especially for those in customer-facing roles or sectors such as hospitality, retail, health and social care.

Before the law change is introduced what should an employee do if harassed by a third party, and how should an employer deal with any such complaint?

An employee should report the matter immediately and follow the employer’s policy and procedure for doing so. They should also seek support from colleagues, friends, family or a trade union if a member, because harassment can have a negative impact on your mental health and well-being.

An employer should take the complaint seriously and investigate it promptly and thoroughly. It is expected to take appropriate action to prevent or stop the harassment, and support the employee who made the complaint and keep them informed of the progress and outcome of the investigation.