Employers are already vicariously liable for acts of harassment between employees under the Equality Act 2010, however, the Government is at the final stages of reintroducing a clause that extends employer liability when acts of harassment have happened between employees and third parties, such as customers. This will only come into effect if there has been a failure of the employers to take all reasonable steps to prevent it. Currently, harassment of an employee by another employee is defined by S26 of the Equality Act 2010, as unwanted conduct that relates to a protected characteristic such as, age, disability, race (see here for the complete list https://www.gov.uk/discrimination-your-rights ).
In 2008, the Employer liability for third-party harassment was originally introduced as an amendment to the Sex Discrimination Act 1975 but later repealed in 2013 as the Government felt it was unnecessary and confusing. In 2019, the Government conducted a consultation on Sexual Harassment in the Workplace which found that issues were still prevalent and further supported by the responses from a public questionnaire. When the response was published on 21 July 2021, the Government announced that it was committed to introducing two legislative measures, which were:
- a duty on employers to take reasonable steps to prevent sexual harassment;
- explicit protections from harassment by third parties.
Although this amendment is likely to pass through the House of Lords later this year, there has been some controversy surrounding the subject of free speech. For instance, conversations overheard by staff in pubs and restaurants may be hard to police, hence some opponents are declaring that employers will now be required to become the “banter police” or risk being taken to an Employment Tribunal by their employees.
As a responsible employer, it will be good practice to get ahead of this by looking at your current provisions and protecting your business as much as possible. This can include:
- Creating a third-party harassment policy
- Provide training to your team on third-party harassment
- Adopt a zero-tolerance policy which employees and third parties are made aware of
- Speak to your employees about the culture of your business and provide support when an incident has occurred
- Review your policies regularly and if there have been circumstances of third-party harassment assess your procedures and amend policies where required
It is understood that the Equality and Human Rights Commission (“EHRC”) will be producing a statutory code of practice on workplace harassment, alongside producing Government guidance for employers on sexual harassment, later in the year. We will share the updates as and when it is published.
If you would like Han Law to look at your current policies relating to Third Party Harassment, or you are starting from scratch, please get in touch.