The Government has launched a consultation on repealing a provision in the Equality Act 2010 which makes employers liable for the harassment of their staff by a third party
The consultation was originally announced in March 2011 and was expected in September 2011 but has been delayed. The consultation closes on 7 August 2012.
Section 40(2) of the Equality Act 2010 currently imposes liability on employers for harassment of their employees in the course of their employment by third parties such as customers and contractors. Harassment is defined as,
".unwanted conduct related to a relevant protected characteristic [which] has the purpose or effect of violating [a victim's] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for [them]."
The "relevant protected characteristics" are: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
An employer will not incur liability unless they know the individual has been harassed in the course of their employment on at least two other occasions and it has failed to take reasonable steps to prevent the harassment.
The Government takes the view that employees are already adequately protected against third party harassment through other legal channels, including the:
- common law duty to take reasonable care for the safety of employees
- statutory duty under the Health and Safety at Work etc. Act 1974
- general harassment provisions in the Equality Act 2010
- Protection from Harassment Act 1997
- constructive dismissal
The proposal is therefore to remove the third party harassment provisions from the Equality Act 2010.
Although the third party harassment provision in the Equality Act has been criticised for being too difficult for employers to comply with, the Government has said it is only aware of one case of third party harassment reaching the employment tribunal. This concerned a worker in a care home who claimed she was being sexually harassed by a resident and her employer was aware of this but took no steps to deal with it. The claimant was successful in her claim.
This suggests that the provision is not well used (or well known) and therefore it is unlikely to be terribly missed. Although repealing the specific provision in the Equality Act ties in with the Government's commitment to reduce unnecessary regulation, this will not remove the need for employers to take all reasonable steps to protect their staff from harassment at work from any quarter (be it colleagues or third parties). An employer should always take complaints about possible harassment extremely seriously and make sure they are investigated in a timely manner.