Third party harassment 




Despite union campaigning, section 40, EA 10, which provided a specific remedy protecting workers from harassment by third parties such as suppliers and customers, was repealed on 1 October 2013. 


Section 40, EA 10 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. 


Unions and the TUC continue to campaign for this politically motivated change to be reversed. Most recently, the Fawcett Society Sex Discrimination Law Review has called for a modified version of section 40 to be reinstated, requiring just one previous incident of harassment to trigger employer liability. 


Members may still 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 duty to prevent harassment under section 26, EA 10 (see page 221);




• that the failure to protect the member from harassment by the third party is a “detriment”, supporting a claim for direct discrimination (see page 214);




• that the employer is in breach of the implied contractual duties of mutual trust and confidence and good faith (see Chapter 3); 




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


• where the harassment is very serious, under the criminal law or the Protection from Harassment Act 1997.