November 29, 2019

Will third-party harassment laws be strengthened? If so, what will this mean for employers?

Employees often come into contact with third parties at work, such as customers, clients, service users, visitors and those who have a different employer e.g. agency workers. A survey carried out by the Equality and Human Rights Commission (EHRC) on harassment in the workplace found that just under a quarter of those who responded had been harassed by a customer, client or service user (Turning the tables, Ending sexual harassment at work, March 2018).

Despite this, employees have only limited protection under the current law where they are harassed at work by a third party. This has been the case since the third-party harassment provisions were removed from the Equality Act 2010, and following a previous decision of the courts (Unite the Union v Nailard). As a result, an employer will only be liable for the harassment of an employee by a third party where the employer's action or inaction is related to a relevant protected characteristic e.g. race or sex.

This effect of this is that, in reality, it is difficult for an employee to win a harassment claim against their employer where they have been harassed by a third party, even where the employer has failed to take appropriate steps to protect them. So there is a gap in the protection afforded to employees from harassment in the workplace.

This issue has been thrown into the spotlight again by a recent case in which Mr Bessong, a black mental-health nurse, sustained a significant facial injury during an attack by a patient. Although the NHS Trust's incident report form made no mention of racism, it later emerged that the patient had a history of racist behaviour towards black members of staff.

The Employment Appeal Tribunal concluded that the NHS Trust was not liable for the racial harassment of Mr Bessong by the patient, because its failure to take adequate steps to prevent racial harassment in the workplace was not related to race and so Mr Bessong did not succeed in his claim. It is worth noting though, that this may not be the final position on this case. Permission for a leapfrog appeal to our highest court - the Supreme Court - was refused by the EAT, but the fact it was requested suggests that this decision is likely to be appealed.

There was some controversy around the removal of the third-party harassment provisions in the Equality Act, particularly in light of the extent of third-party sexual harassment at work that has come to light under the #MeToo movement. Indeed, the EHRC and the Women and Equalities Select Committee have both repeatedly called for the third-party harassment provisions to be reinstated in the Equality Act. 

A government consultation looking at whether new third-party harassment provisions should be introduced and, if so, when an employer should become liable, closed on 2 October 2019. The consultation sought views on whether the reasonable steps defence should apply and whether an employer's constructive knowledge of the harassment will be sufficient for it to be liable.

We will have to wait and see whether the law is changed to give employees better protection from harassment by third parties at work. The Labour Party has pledged in their election manifesto to require employers to maintain workplaces free of harassment by third parties - so a change in the law seems likely if they are in power following the 12 December general election.

Regardless of the current legal position and how this may change in future, what can employers do now and in future to help tackle harassment of their staff by third parties? One important step is to ensure you have a well-publicised harassment policy, that makes clear that allegations of harassment of staff by third parties will be taken seriously and appropriate action taken in relation to them.

Another key step is to ensure that managers and HR are trained on how to deal with allegations of harassment so that they are addressed effectively and handled sensitively for everyone concerned.

It is also important to set the right tone and culture in your organisation, so that employees feel able to raise concerns and everyone understands what behaviour is appropriate and acceptable.

For more information or advice, please get in touch with your usual Clyde & Co contact.

Bessong v Pennine Care NHS Foundation Trust