Liability for 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provided a specific remedy protecting workers from harassment by third parties such as suppliers and customers, was repealed by the Enterprise and Regulatory Reform Act 2013 on 1 October 2013.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Even though section 40 has been repealed, members may still be able to bring a claim based on third party harassment in some circumstances, for example by arguing that the unwanted conduct “relates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 175).

Failing to protect them may also be a detriment, supporting a claim for direct discrimination. It may also be a breach of the implied duty of mutual trust and confidence and of the duty to take reasonable care of employees’ health and safety (see Chapter 3).