As of yesterday employers are no longer vicariously liable for harassment of their employees by third parties, such as customers or contractors. Before 1 October 2013 if a third party had harassed the employee on at least two prior occasions and the employer knew about it and had not taken reasonable steps to prevent the harassment they could be liable for a further example of harassment.
This part of the Equality Act 2010 has been repealed with effect from 1 October 2013. So is it now correct to say that employers will no longer be liable for third party harassment in any circumstances? The answer is “no”.
Removal of these provisions may not relieve employers of what the Government saw as an unnecessary legal burden in the way that was anticipated. Employees can still claim protection from third party harassment elsewhere in the Equality Act if they can show that an employer’s failure to act in the face of third-party harassment amounts to unwanted conduct “related to” a protected characteristic that violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them.
Employees can also use an employer’s inaction in these circumstances in support of a claim for constructive dismissal, or if they can show that an employer’s failure to act breached a duty of care the employee could bring a claim for negligence. Employees also continue to have rights under the Protection from Harassment Act 1997.
The Government suggested that the provisions governing third-party harassment are an example of unnecessary regulation introduced without any real or perceived need. However the repeal of the law has argubaly left a more uncertain situation where employers are less sure of when and how they should response to third party harassment of their employees.
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