The government is repealing the third party harassment provisions in the Equality Act from 1 October - disregarding overwhelming opposition from senior members of the judiciary and despite having the support of only 20 per cent of those who responded to a consultation.
Under section 40 of the Act, which only came into force in October 2010, employers are liable for harassment by third parties (such as customers, clients and service users), provided they are aware of two previous incidents of harassment and have not taken reasonable steps to prevent it from happening.
In theory, workers can still bring third party harassment claims under the general harassment provisions of the Equality Act but in practice that legal test is more difficult to overcome.
For instance, a Protection from Harassment Act civil claim can only be brought against the individual perpetrator when the act of harassment amounts to a criminal offence, which is a high hurdle to overcome. The bar is also high for an employee bringing a personal injury claim since they need to prove that the employer's negligence caused them to suffer a physical or psychological injury.
The removal of the Equality Act provisions is likely to mean that employers won't feel under any of the current pressure to take preventative steps.
Incredibly, given the difficult economic times and the very real problems of succeeding in them the government has suggested that employees facing harassment from third parties after 1 October should resign and bring constructive dismissal claims against their employer.
Rakesh Patel of Thompsons Solicitors said: “We made clear our opposition to the repeal of this provision in our response to the government consultation.
“The assertion that an employer has no control over harassment perpetrated by a third party is simply wrong. An employer has the right to say where an employee works and, since it's also in their power to control who and what an employee is exposed to, asking them to ensure that exposure to harassment is not harmful is a perfectly reasonable balance and there should be an easily understood and accessible redress if it is”.
It is worth noting that section 40 of the Act will still apply to third party harassment which took place before 1 October 2013.
To read Thompsons response, go to: http://www.thompsonstradeunionlaw.co.uk/information-and-resources/briefings-responses.htm#pre_2012 (August 2012)
To read the government’s response, go to: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/137749/equalityconsultation-response_1_.pdf