Workplace rights: Harassment u-turn

Employers are legally required to protect their staff against discriminatory harassment by other employees, but how far should this extend to harassment by third parties such as clients and contractors?

by Michael Burd and James Davies
Last Updated: 09 Oct 2013

Previously, the law covered only third-party sexual harassment, but last year's Equality Act extended this to other grounds, including race, disability, age and sexual orientation. So if a customer racially abuses a black employee, the employer can be sued if it has failed to take reasonably practicable steps to prevent such conduct. But the position is complicated by a 'three strikes' rule. To be found liable, the employer must know that the employee has been harassed at least twice before - not necessarily by the same third party. Despite having implemented this section of the Equality Act last autumn, the Government is having second thoughts. Describing the third-party harassment provisions as 'unworkable', it plans to consult on removing them. Yet good practice dictates that employers should take measures to protect staff from offensive treatment by business partners, so surely the law should reflect that. Judicious reform would be a better option.

- Michael Burd and James Davies, Lewis Silkin LLP solicitors, email: employment@lewissilkin.com.

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