Third Party Harassment in the Workplace

Third Party Harassment

Harassment in the Workplace

 

Section 26 of the Equality Act 2010 defines harassment as when someone engages in unwanted conduct related to a protected characteristic, and the conduct has the purpose or effect of violating another’s dignity. Harassment in the workplace is more commonly seen between employees and the law is very clear on this, however, it can also come from a third party, meaning a client or a customer.

 

The law governing harassment by third parties in the workplace has changed a number of times over the last couple of decades. This has made it difficult for employees to understand what protection they may have. Our aim here is to clarify the law and highlight the protection employees are owed in cases of harassment by third parties. To understand this topic, it is a good idea to explain the recent developments in the law.

 

Until 2013, employers could be held liable for the harassment of an employee by a third party. The “three strike rule” meant an employer could be held liable if an employee had been harassed by a third party on two previous occasions if the employer knew of the incidents. In 2012, the Government consulted on repealing the “three strike rule”. The majority of responses opposed the repeal, despite this, however, the third party harassment provisions were removed in the Enterprise and Regulatory Reform Act 2013. The Government claimed these regulations were “unnecessary” and that the standalone definition of harassment under s.26 could be used instead.

 

For a few years, the repeal of the “three strike rule” was not particularly problematic in light of the Government’s assurance that s.26 could be used instead. In May 2018, a case came before the Court of Appeal: Unite the Union v Nailard. This tested whether s.26 could find an employer liable for third party sexual harassment. This was a complex case involving strict scrutiny and analysis of previous case law on the subject. It was determined that “…there is now no explicit liability on an employer for failing to prevent third party harassment”. It is clear from the judgement in this case that s.26 is not broad enough to encompass third party liability except for when “the proscribed factor forms part of the motivation for their inaction”.

 

What does this mean for my case?

Liability for third party harassment is provided for under the Equality Act in very limited and specific circumstances. This means each case must be addressed on its specific facts, and strict scrutiny must be applied to the employer’s motivation in not offering an employee protection from third party harassment. The Unite case clarified that s.26 is only broad enough to encompass third party liability in very specific circumstances where an employer’s inaction is motivated by someone’s protected characteristic. Therefore, a wider protection available to all victims of third party harassment does not exist. It is important to note that the protection now afforded to employees for third party harassment may also be covered by direct discrimination.

 

What next?

Unfortunately, the protection offered to employees for third party harassment is very limited. The inadequacy of the law has been recognised and in December 2018, the Government announced a new Code of Practice to tackle sexual harassment at work. It is uncertain when, how or if the law will change again in the near future but it may.

 

Lily Rae, Student Volunteer from the University of Chester School of Law

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Pregnancy Question: lack of understanding about discrimination law

Many employers think it is reasonable to ask female job applicants if they plan to have children, figures published by the Equality and Human Rights Commission suggest. The commission says many employers need more support to understand the basics of discrimination law.

The commission, a non-departmental public body, surveyed 1,106 senior decision-makers in business. Over a third (36%) think it is reasonable to ask female job applicants about their future plans to have children. Six in 10 employers think a woman should disclose if she is pregnant during the recruitment process. Almost half (46%) think it is reasonable to ask female candidates if they have young children. Nearly half (44%) of respondents think women should work for an organisation for at least a year before deciding to have children. Around a third believe that women who become pregnant and new mothers are generally less interested in career progression than others in the company.

Rebecca Hilsenrath, the commission’s chief executive, said the findings represent a ‘depressing reality that, when it comes to the rights of pregnant women and new mothers in the workplace, we are still living in the dark ages. We should all know very well that it is against the law not to appoint a woman because she is pregnant or might become pregnant. Yet we also know that women routinely get asked questions around family planning in interviews’.

She added: ‘It’s clear that many employers need more support to better understand the basics of discrimination law and the rights of pregnant women and new mothers.’

Read full article here.

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Final farewell for the Equality Act questionnaire procedure?

6th April 2014 was the date set for the abolition of the statutory questionnaire procedure. Just as a reminder, the government decided to remove the statutory equality questionnaire process as part of its ‘red tape’ consultation; that was despite a whopping 83% of respondents to the consultation being opposed to it.

So what was the questionnaire process and was it even important?
Well, the process has been around since the first equality legislation with the Sex Discrimination Act in 1975, with the most recent being embodied in the Equality Act 2010. It was a process that allowed claimants at an early stage to ask questions about their potential claim to the alleged discriminator. In the right hands it could be a very powerful tool – enabling the claimant to gain significant information at an early stage, often before proceedings were even started. The questionnaire process recognised the difficulties faced by claimants and sought to offer some way in addressing the imbalance by enabling them to secure information that potentially would not be secured through any other route. It also helped to determine whether they had a case or not; early information in many cases encouraged settlement before tribunal or court proceedings were issued. Since the government introduced fees for tribunal claims, the questionnaire procedure had taken on increased significance for claimants.

If a respondent failed to reply to the questionnaire or provided evasive or equivocal replies, the courts and tribunals had the power to draw adverse inferences, which again was a really important tool for the claimant to use.

So what now?
It is clear that the removal of the ‘statutory’ process has not removed the claimant’s ability to ask questions of the potential respondents. Indeed, ACAS has now introduced guidance on how to do this, which appears more detailed than the original statutory guidance. It can be found here (PDF)

It is hard to see how this 26 page booklet helps in any way to reduce the bureaucracy of what was a widely understood and well established procedure like the statutory questionnaire. The 6 step process introduced by this guidance in fact bears a strikingly similar resemblance to the previous process and there is even a template to fill in. To top it all, the guidance emphasises that whilst it is a voluntary rather than statutory process the courts and tribunals may still draw adverse inferences from a refusal to respond or evasive answers –

‘A responder is not under a legal obligation to answer questions. However a tribunal or county/sheriff court may look at whether a responder has answered questions and how they have answered them as a contributory factor in making their overall decision on the questioner’s discrimination claim. A Tribunal or court may also order a responder to provide such information as part of legal proceedings in any event. These are issues a responder would need to weigh up when considering if to reply and what to say.’

So things don’t appear to be that different after all….in fact, having ACAS guidelines is likely to encourage people that would never have used the questionnaire process previously, to do so now. It is likely to be quoted in increasing numbers around our courts and tribunals.

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Another Brick in the Wall?

For those of us who help people to exercise their employment rights it feels as if we are facing a brick wall; one that the government appear determined to make even higher. Changes to the employment tribunal system have crept in almost unnoticed by the general population; changes that erode rights hard fought for over the years. Unfair dismissal claimants now must have 2 years qualifying service (it was one year – introduced under Labour) and shortly they will be subject to a 12 month wages compensation cap. 3rd party liability for harassment is being repealed in discrimination claims as is the ability to serve an equality questionnaire to gain evidence of discrimination. But next week we have the biggest change of all – the introduction of fees for making an employment claim. On 29th July, the fees go live and will cost each claimant up to £1200 to take a case through hearing. Not an insignificant sum of money, certainly enough to prevent many people from pursuing a case against their employer.

The government says that it is about covering the costs paid out of the tax payers pocket, but in reality it seems to be more about letting businesses off the hook. Thousands of people will be excluded from making legitimate claims against their employer – while businesses will be less inclined to abide by their legal obligations. What’s the point when the chances of you being challenged are so much reduced?

But are the Tribunals ready for this change? It appears not. Since centralisation of tribunal administration (yet another recent change), we like many other organisations have noticed the problems with delays in correspondence and hearings. This additional burden is bound to cause even more delays and confusion than before. In fact although the 29th July is almost upon us the law which brings in this change has still not been passed. The new tribunal application form, the process for handling payments and the fee remission systems are all still a mystery….yet the new Employment Tribunal rules which come in the same day specifically require the rejection of any application that does not come in with the fee remission form or the fee…. It is most definitely a case of ‘watch this space’.

 

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