3rd party harassment protection ends

Posted: 1st October 2013

Shouting womanFrom 1 October 2013, the third party harassment provisions contained in Section 40 of the Equality Act 2010 have been repealed.

The provisions made employers liable for harassment of their employees by third parties, such as customers or clients, over whom they do not have any direct control, when the harassment had taken place on at least two other occasions and the employer failed to take reasonably practicable steps to prevent it.

Although the majority of responses to a consultation on the issue were against a change, the Government was of the view that the existing provisions were unworkable. Additionally, there was little evidence that there was a significant need for them or that they were effective in practice.

Employers should still take action if they receive a complaint of third party harassment as there are other avenues open to an employee who is exposed to unwanted conduct and whose employer fails to take reasonable steps to prevent it.

A claim might still be possible under Section 26 of the Equality Act, which contains general provisions regarding harassment and unwanted conduct. Also, an employer’s failure to act to prevent third party harassment could be regarded as a fundamental breach of the employee’s employment contract, thus entitling the employee to resign and claim constructive dismissal.