Liability for third party harassment

Where harassment happens more than once, an employee may also be able to rely on the provisions in the Equality Act 2010 prohibiting third party harassment. Section 40 of the Equality Act 2010 gives employees a claim against their employer where acts of harassment are committed by a third party (such as a customer, supplier or agency worker) on at least three occasions, where the employer knows of the harassment and fails to take “reasonably practicable steps” to prevent it. It does not matter whether the harasser is the same person each time, as long as the employer knows of the harassment.

However, these provisions are likely to be short-lived because in May 2012, the government launched a consultation for their repeal, arguing that the regulations are “unworkable”, since employers have “no direct control” over the harassment of their staff by third parties. Critics point out that since the employer is only ever obliged to take “reasonable steps”, this absence of control is irrelevant.