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.
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