Third party harassment

Despite campaigning by unions, section 40 of the EA 10, which provided a specific remedy protecting workers from harassment by third parties such as suppliers and customers, was repealed by the Enterprise and Regulatory Reform Act 2013 on 1 October 2013.

Section 40 provided a claim against the employer for acts of harassment by a third party (such as a customer, supplier or agency worker) on at least three occasions, where the employer knew of the harassment and failed to take reasonably practicable steps to prevent it.

Even though section 40 has been repealed, members may be able to bring a claim based on third party harassment in some circumstances, by arguing, for example:

• that the unwanted conduct by the third party “relates to” their protected characteristic, and that the employer’s failure to take steps to protect them is a breach of the general anti-harassment duty under section 26 of EA 10 (see page 169);

• that the employer’s failure to protect the member against harassment by the third party is itself a detriment, supporting a claim for direct discrimination (see page 155);

• that the employer is in breach of the implied duty of mutual trust and confidence (see page 69); and

• that the employer has breached its duty to take reasonable care of employees’ health and safety (see Chapter 3).

Contract workers and agency workers have a right to protection from harassment by both the agency and the end user (see page 151). However, it seems that direct employees may not be protected under the EA 10 from harassment by co-workers who do not share the same employer as the victim, unless these workers are agents of the victim’s employer (section 109 EA 10) (see Kemeh v Ministry of Defence [2014] EWCA Civ 91, discussed on page 152).