Following a consultation on proposals to repeal the third-party harassment provisions to the Equality Act 2010, the law has been changed from 1 October, meaning that the rules that previously made an employer liable if an employee is harassed by a third party, such as a client or supplier, no longer apply. However, employees will still be able to claim for bullying by clients and customers under existing law.
Despite there being little support for the repeal, the government pushed the change forward as part of its bid to reduce red tape for businesses, arguing that the provisions imposed additional liabilities on employers, hindering business growth and economic recovery.
Under the third party harassment provisions, an employer’s liability for the harassment of its employees by third parties only arose when harassment had occurred on at least two previous occasions, the employer was aware that it had taken place, and had not taken reasonable steps to prevent it happening again. This was known as the “three-strikes rule”, and the harassment did not need to be by the same third party or be of the same nature.
However, despite the change in the law, employees may still be able to bring a claim for third-party harassment under the general harassment provisions in s.26(1) of the Equality Act 2010. This will involve arguing that the employer’s inaction is conduct “related to” a protected characteristic causing a hostile, intimidating or degrading environment.
In addition, employers could also face indirect discrimination claims if, for example, an employee argues that the employer’s inaction is a provision, criterion or practice that places then at a disadvantage because of their protected characteristic.