Third party harassment – do employees need greater protection?

In 1994, in a case that foreshadows the recent Presidents Club scandal, two black waitresses were working at an all-male private dinner at which the guest speaker was Bernard Manning. The waitresses were the target of racist and sexist jokes by Mr Manning throughout the evening. They brought a claim against their employer, which did not employ Mr Manning, and were successful. However, that decision was later reversed by the House of Lords (now the Supreme Court) in 2003 when it held that a school was not liable for the harassment suffered by one of its employees, a teacher, by the school’s pupils. This exposed a gap in the legal protection for employees; whereas the employer would generally be liable for harassment suffered by an employee in the workplace if caused by co-workers, it would not be liable for harassment caused by third parties.

Section 40 of the Equality Act 2010 addressed that gap. It imposed liability on an employer for third party harassment in circumstances where:

• there had been two previous incidents of harassment (which did not have to be committed by the same third party);
• the employer was aware of those incidents; and
• the employer had failed to take reasonably practicable steps to prevent harassment happening again.

However, in 2011 the coalition government launched its “Red Tape Challenge”, which aimed to reduce domestic regulation for business by abolishing “needless” and “overzealous” laws. As part of this program, in 2012 the government consulted on repealing section 40 on the basis that it was “confusing and unnecessary”. Despite an overwhelming opposition (71% of the consultation responses did not agree with the proposal), section 40 was repealed on 1 October 2013, just over three years after it was enacted.

In the absence of explicit protection under section 40, employees who have been harassed by a third party have limited recourse. In particular, it has been suggested that section 26 of the Equality Act 2010 could cover third party harassment. Section 26 imposes liability on a party (including on an employer where the conduct is done by an employee in the course of their employment) for harassment, i.e. conduct “relating to” a protected characteristic that violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. It is possible that an employee could successfully argue that an employer’s failure to prevent harassment by third parties amounts to conduct “relating to” a protected characteristic.

However, subsequent case law suggests that this is likely to be an uphill struggle. in 2011 the Employment Appeals Tribunal held that an employer’s failure to act will rarely meet the requirements for harassment, although in another case that year it decided that the employer had not done enough to protect its employee from harassment by third parties. More recently, a trade union was found to be liable for harassment against one of its employees by elected officials. While the officials were not employees of the union, they were held to be agents, so this decision (which is subject to an outstanding appeal) is likely to have limited application to cases involving other third parties.

In January 2018 (coincidently, shortly before news of alleged harassment at the Presidents Club broke), the Fawcett Society published its review of sex discrimination law in the UK. One of its many recommendations is that section 40 be reintroduced, but with a key change – liability would arise after just one previous incident of harassment, not two (which the review considers to be “excessive”).

Given that research considered by the Fawcett Society’s review found that 52% of women have experienced harassment in the workplace, and the current public attention on harassment, it seems that this is an area that the government is bound to reconsider.