Third party harassment 





When it was first enacted, the EA 10 included a specific remedy protecting workers from harassment by third parties such as suppliers and customers (section 40, EA 10). Despite union campaigning, the duty was repealed on 1 October 2013. The government maintained that the duty was a “burden on business” and that workers already enjoyed legal protection from third party harassment, for example, through the general ban on direct discrimination and harassment under sections 13 and 26, EA 10. 



Section 40, EA 10 provided a specific claim against the employer for acts of harassment by a third party such as a customer, supplier or agency worker that had taken place at least three times, where the employer knew about 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 and change now appears likely. In December 2018, the government promised to consult on “how best to strengthen and clarify” third party harassment laws. This change of heart follows an important Court of Appeal (CA) ruling in the case of Unite v Nailard [2018] EWCA Civ 120. In this case, the CA concluded that the statutory prohibitions on direct discrimination and harassment in the EA 10 do not protect employees from third party harassment. An employer will only be liable under the EA 10 for failing to protect its workers from third party discrimination or harassment if their decision not to protect their staff is motivated by a protected characteristic (for example, “I won’t intervene to stop this harassment because the complainant is a Muslim”).