Third Party Harassment Provisions Cease – but Claims May Not, Says Hogan Lovells

LONDON, 26 September 2013 - From 1 October 2013 provisions in the Equality Act that make employers liable for harassment of employees by third parties, such as customers, clients or suppliers, will be repealed. The change is part of the Enterprise and Regulatory Reform Act, which received Royal Assent earlier this year.

Third party harassment was originally introduced in relation to sex-related harassment but was extended to all discrimination strands by the Equality Act 2010. The provisions make an employer potentially liable for the actions of a third party if:

  • an employee is harassed on more than two occasions
  • the employer knows about the harassment, and
  • the employer has not taken all reasonable steps to prevent the harassment from occurring.

During 2012 the Government consulted on repealing the third party harassment provisions as part of its deregulatory agenda, noting that there was "a lack of evidence that there is any significant need for them or that they are effective in practice" and on the basis that employees are adequately protected against such harassment through other legal routes, including claims for:

  • Constructive dismissal
  • Protection from Harassment
  • "Ordinary" discrimination/ harassment claims
  • The employer's duty of care
  • Breaches of health and safety legislation

Commenting on the change Elizabeth Slattery, partner in Hogan Lovells' Employment team, said:

"The repeal of the third party harassment provisions is not the end of the story for employers. Other legal avenues are available to an employee who believes that they have been harassed by a third party. Even though there are obstacles to an employee succeeding with such claims, a complaint against the employer where third party harassment has occurred remains a risk".

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