The Equality Act 2010 previously contained provisions that allowed workers to bring harassment claims against their employers based on the actions of third parties such as customers or suppliers if the harassment had occurred on at least three occasions. These sections were repealed in 2013.
The Worker Protection (Amendment of Equality Act 2010) Bill sought to change this based on growing calls to reinstate these protections. This was mentioned in the case of Unite the Union v Nailard where a union employee was harassed by elected representatives of the union. The Court of Appeal held that the Claimant needed to be able to show the employer did not take action on the third party harassment because of a discriminatory reason. This would be very hard for employees to prove and seemed to many to be an unsatisfactory position for employees to be in.
The Bill included provisions that stated unless an employer could establish that they had taken all reasonable steps to prevent the harassment they would be liable for harassment employees faced at the hands of third parties.
It was unclear how employers were supposed to successfully utilise the ‘all reasonable steps’ defence. The government described it as “flexible” and “proportionate”. It seemed likely that there would be a wide range of appropriate responses.
When the Bill was going through the House of Lords, Conservative peers expressed concern about the provisions on third party harassment. Lord Frost has described the bill as a “woke, socialist measure” that would “have a chilling effect on every conversation in the workplace”.
The Bill was amended to clarify employers would not be liable for harassment by individuals who were not in their employ or control, unless the comments made were specifically aimed at the employee themselves. This would protect employers from liability in a situation where a customer was having a conversation which expressed opinions on “political, moral, religious or social” issues that an employee overheard and was offended by. This would apply to harassment based on protected characteristics (age, race, sex, gender reassignment, pregnancy or maternity, marital or civil partner status, sexuality, religion or belief, and disability) but would not apply in cases of sexual harassment.
This ended up not being a sufficient concession and the third-party provisions have now been dropped from the Bill entirely.
For employers, the position on third party harassment is the same as it has been since 2013 and no new obligations on this issue will be contained in this Bill. The Bill is still going through the House of Lords and does contain a duty to take reasonable steps to prevent sexual harassment in the workplace. Proactive employers may wish to put in place or strengthen existing policies and provide training on this topic.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.