Third party harassment provisions removed from Equality Act 2010

27 October 2013
Third party harassment provisions removed from Equality Act 2010

By Vanessa Rennie

As from 1 October 2013, the Enterprise and Regulatory Reform Act 2013 abolished the third party harassment provisions.

What was third party harassment?
Previously, under section 40(2)-(4) of the Equality Act 2010, an employer was liable for the harassment of its employees by third parties (primarily customers or clients) when:

 

  • harassment happened on at least two occasions
  • the employer knew it had taken place and
  • the employer had not taken reasonable steps to prevent it from happening.


Known as 'the three strikes rule', an employer could be held liable even if the harassment was not by the same third party or of the same nature.

Why has third party harassment been scrapped?
A consultation in May 2012 found that 71 per cent of employers opposed the removal of the provision. However, the government still continued with the abolition on the basis that the provisions were considered to be unnecessary red-tape that imposed additional liabilities on employers and hindered business growth and economic recovery.

Can employees still claim third party harassment?
If employees wish to make a claim for third party harassment, they still may be able to under the general harassment provisions in section 26(1) of the Equality Act 2010. To do this they will need to argue that the employers inaction has been accountable to causing a hostile, intimidating or degrading environment.

Third party harassment claims can also be made by employees, if the event occurred before 1 October 2013 under Section 40.

Actions
Employers should still encourage employees to report any third party harassment and take all reasonable steps to prevent it from happening within the workplace by ensuring:

 

  • there is an anti-harassment policy expressing zero tolerance
  • all workers are aware of the policy and receive training
  • third parties are informed that harassment will not be tolerated and will be treated seriously
  • managers are required to intervene if they observe harassment by third parties and employees are asked to report any such
  • any complaint of harassment by a third party is investigated promptly with sensitivity and in confidence
  • all staff are involved in the policy-making process, including staff, trade union and/or worker representatives in policy development and feedback.


For further information see the Bullying and Harassment section of HRBird.

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