Third party harassment

The EA10 originally included specific provisions designed to provide a remedy for employees who were harassed by third parties, such as suppliers or customers. Section 40 provided a claim against the employer for acts of harassment by a third party on at least three occasions, where the employer knew of the harassment and failed to take reasonably practicable steps to prevent it. Despite campaigning by unions, the Tory-led coalition government repealed these laws on 1 October 2013.

Recent research by the TUC has strengthened calls for the reinstatement of the ban on third party harassment (see page 21). In its 2018 Sex discrimination law review, gender equality and women’s rights campaign charity, the Fawcett Society, called for a modified version of section 40 to be reintroduced, requiring just one previous incident of harassment to trigger employer’s liability.

In its response to the Women and Equalities Committee report on sexual harassment (see page 33), the government finally agreed to consult on clarifying and strengthening the law on third party harassment. The change of heart follows the Court of Appeal ruling of Unite the Union v Nailard [2018] EWCA Civ 1203, in which the Court ruled that employees cannot rely on the employer’s general duty to protect them from harassment (section 26, EA10) in the context of third-party harassment.