Third party harassment 


Despite campaigning by unions, section 40, 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provided a specific remedy protecting workers from harassment by third parties such as suppliers and customers, was repealed by the Enterprise and Regulatory Reform Act 2013 on 1 October 2013.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Even though section 40 has been repealed, members may still be able to bring a claim based on third party harassment in some circumstances, by arguing, for example: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, EA 10 (see above);


• 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;


• that the employer is in breach of the implied duty of mutual trust and confidence (see Chapter 3); 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 to which they provide their services.