Third-Party Harassment

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A new TUC poll of over 1,000 women has indicated that three in five women – and almost two-thirds of women aged between 25 and 34 – say they have experienced sexual harassment, bullying, or verbal abuse at work.

The TUC poll found that most of these cases were not isolated incidents, with more than three in five women saying they’ve experienced three or more incidents of bullying at work.  When you focus on sexual harassment, two in five women have experienced at least three incidents of sexual harassment.

The poll found that the perpetrator in 39% of the most recent instances of harassment is a third party, such as a client, customer, or patient. Harassment from a third party was more likely to be experienced by younger women; more than half of women 18-34 reported having experienced harassment from a third party at work.

Sexual harassment is the least likely to be reported, with only 30% of women who had experienced it telling their employer about it. Reasons for not reporting harassment included feeling they would not be believed or taken seriously, worrying it would negatively impact relationships at work, and fearing it would negatively impact their career prospects.

The TUC carried out the poll following concerns that backbench Tory MPs are seeking to delay and derail the passage of the Worker Protection (Amendment of Equality Act 2010) Bill.

In its current draft form, the Bill had its second reading in the House of Lords on 24th March, and it proposes the following:

  • An employer will be treated as harassing an employee (engaging in unwanted conduct related to a relevant protected characteristic) when a third party, such as a customer or client, harasses an employee in the course of their employment and the employer has failed to take all reasonable steps to prevent that harassment.
  • Other than in cases of sexual harassment, an employer will not be taken to have failed to take all reasonable steps to prevent harassment where the harassment involves a conversation in which the claimant is not a participant (or a speech that is not aimed specifically at the claimant), the conversation (or speech) contains the expression of an opinion on a political, moral, religious or social matter, the opinion expressed is not indecent or grossly offensive, and the harassment is not intentional.
  • Employers would be under a new duty to take all reasonable steps to prevent sexual harassment of their employees during their employment. Breach of this duty may be enforced by the Equality and Human Rights Commission (EHRC) under its existing enforcement powers and, where a claim for sexual harassment has been upheld, by an employment tribunal.
  • Where a tribunal upholds a claim for sexual harassment, if it finds that the employer breached the duty to take reasonable steps to prevent sexual harassment, it may order an uplift in compensation of up to 25% to reflect the employer’s breach.

Third-party harassment is not a new concept.  Before it was repealed on 1 October 2013, section 40 of the Equality Act 2010 contained specific rules on third-party harassment, which made employers liable for such harassment where the employer:

  • Failed to take such steps as would have been reasonably practicable to prevent it.
  • Knew that the employee had been harassed during their employment on at least two other occasions by a third party (whether or not the third party was the same person on each occasion).

The proposed new rules don’t require there to have been more than one incident of harassment, and an employer will be potentially liable in respect of a single act.

When it comes to the “reasonable steps” defence, the employer will not be treated as having failed to take all reasonable steps to prevent the harassment solely because the employer did not seek to avoid expressing the opinion.  The explanatory notes to the Bill note that:

stakeholders raised concerns that the extension of these protections, whilst important and necessary, could inadvertently worsen the chilling effect that anti-harassment legislation could have on free speech.”

Accordingly, while the government expects employers to act about workplace harassment, “in certain cases, this action should fall short of prohibiting the conversations of others.” Employers will still be expected to take steps to prevent targeted, indecent, or grossly offensive conversations in the workplace, such as racial slurs.

Examples given in the explanatory notes:

  • The employment tribunal finds that harassment related to race has occurred where an employee overhears a conversation between two other employees concerning the treatment of immigrants. The employer can show that they have taken all reasonable steps to prevent harassment by having an effective anti-harassment policy in place. The policy does not need to include the prohibition of conversations about controversial topics in order for the employer to avoid liability.
  • The employment tribunal finds that harassment related to race has occurred where a black employee overhears a conversation between two customers which contains a racial slur. The employer will be expected to take reasonable steps in relation to conversations that are indecent or grossly offensive to avoid liability. Such measures may include having a policy of zero tolerance of such conversations (including by third parties) in the workplace.

If the government continues to support the Bill, it will come into effect one year after it receives Royal Assent. As always we will keep you updated. If you have any questions about third-party harassment, please do not hesitate to get in touch with your Employment Law Advisor at Howarths on 01274 864 999.

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