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The government is set to revive employer liability for third-party harassment through clause 20 of the Employment Rights Bill.
The proposals are part of their commitment to tackling the prevalence of workplace harassment, placing greater responsibility in the hands of employers to take action to prevent such behaviour – and holding them to account when they don’t.
The reforms also have broader ambitions. Evidence suggests women are more likely than men to be harassed by a third party at work . By strengthening protection and improving working conditions, the government hopes to support women’s participation in the workforce.
Note that liability for third-party harassment is distinct from an employer’s duty to take “reasonable steps” to prevent sexual harassment of their workers. This blog focuses on third-party harassment only. For more information on the preventative sexual harassment duty, see our blog here.
This isn’t the first time we have seen measures like this. Employer liability for harassment perpetrated by third parties in the workplace – also known as the ‘three strikes rule’ – was previously dealt with by section 40 of the Equality Act 2010 (EqA 2010). However, the provision was scrapped in 2013 after it was seen by many to be confusing and unnecessary.
Last year, the former government attempted to pass legislation that would once again make employers liable for third-party harassment, but it quickly ran aground amid concerns over its potentially “chilling” impact on free speech.
So what can we expect this time around?
There is currently no specific employer liability for harassment of their staff by third parties, like customers or clients.
New rules in relation to sexual harassment were introduced last year (see this blog). While failing to take “reasonable steps” to prevent sexual harassment by third parties could lead to an employer potentially facing enforcement action by the EHRC (and a claimant being awarded more compensation if successful in a sexual harassment claim), employees cannot bring a free-standing claim in the tribunal against their employer for that third-party sexual harassment.
The position is set to change under the Employment Rights Bill.
Employers would be liable for harassment perpetrated by third parties where:
Crucially, this would enable employees to bring tribunal claims covering all protected characteristics where they have been subject to harassment (e.g. race, disability and sexuality-related harassment, as well as sexual harassment) by a third-party at work.
The "all reasonable steps" concept, mirrored in the defence under section 109(4) EqA 2010, is a notoriously high bar. An employer will have taken all reasonable steps if there are no further steps that they could reasonably have been expected to take.
However, taking “all reasonable steps” is not the same as taking every step. There is no expectation from the government that employers eliminate all possible risks.
In particular, the government recognises that an employer’s steps to prevent third parties from harassing an employee will necessarily be more limited compared to those implemented for its own workers.
While it suggests employers won’t be required to take ‘unworkable’ or ‘impractical’ steps, these are left to employers to determine. Clearly what is reasonable will depend on factors such as an employer’s size and resources, the nature of the working environment, and the risks present.
Employers should consider undertaking a risk assessment similar to that required in respect of the duty to prevent sexual harassment. This exercise should entail considering the particular risk points that the organisation faces, identifying where employees might be exposed to third-party harassment and producing an action plan of steps to address the risks.
Previous incidents of third-party harassment will also serve as valuable indicators, highlighting areas where employers may need to focus additional attention or introduce targeted preventative measures.
In short, this could be anyone who is not an employee of the employer. Depending on the business, this could capture contractors, customers, clients, students, friends and family of colleagues, delegates at a conference and members of the public.
Determining to what extent employers should be expected to intervene and shut down controversial third-party discussions that staff might find offensive has engaged a lot of debate and scrutiny from policymakers, employers, and human rights advocates. It requires a delicate balancing act between third parties’ rights to freedom of expression on the one hand and employees’ protection from harassment and right to private life on the other.
The former government proposed a carve-out for expressions of opinions on political, moral, religious or social matters in an (ill-fated) attempt to manage freedom of expression concerns and get its legislation over the line last year. Under its proposals, providing strict conditions were met, employers would not be expected to prevent these expressions of opinion.
This carve-out is notably absent from the Employment Rights Bill.
When asked by the Joint Committee on Human Rights why that is the case, the government said it was not necessary. In its view, freedom of expression is already protected by requiring only reasonable steps to be taken. Any step that would disproportionately interfere with a third party’s right to freedom of expression would not be considered a reasonable step.
Whether this will offer reassurance to employers is questionable. Judging what level of interference with a human right is proportionate is rarely straightforward. Even deeply offensive speech may attract legal protection, so employers face potential risks both in intervening and taking no action.
It is likely that the provisions on third-party harassment will survive the Employment Rights Bill’s final few months through Parliament. Once the Bill receives Royal Assent (expected later in summer this year), the provisions will be ready for implementation immediately. Employers should therefore begin considering what these rights mean for their workforce and taking steps to prepare for the change.
Further information and updates on the Employment Rights Bill are available on our UK Employment Law Reforms tracker.