The issue of third party harassment is back in the spotlight, following Government plans to scrap protections conferred two years ago by the Equality Act 2010. A consultation on this closes on 7 August.

Currently workers can bring a claim against their employer where, for example, clients or customers have harassed them in the course of their work. A claim can only be brought after three instances of harassment (the ‘three strikes’ rule). An employer will have a defence to such a claim if it can show it took reasonable steps to prevent the harassment.

Case law
The only known third party harassment claim since the Act involved a care home worker who successfully argued her employer was liable for the sexual harassment she suffered at the hands of a resident. This lack of reported claims could be attributable to the Act’s provisions having focused the minds of employers on policies and practices aimed at stamping out third-party harassment. The Coalition believes the last government introduced the provisions without any “real or perceived need”.

Prior to the implementation of the Act, one claim was successful where customers made racist comments to staff and the employer would not allow this behaviour to be challenged. In another case, an employer was held liable for racial harassment where it had not done enough to protect a social worker in a home for troubled children.

Imperfect rules
The fact is the old legislation was imperfect and claims often had to involve convoluted arguments to succeed. There was and is a need for the legislation to provide appropriate protection. For example, in one of the reported cases, the tribunal said harassment by third parties in certain employments is a "hazard of the job". An employer accepting this argument, would leave themselves and their employees open to the consequences if they failed to address this risk. For employers, this could ultimately result in the need to defend employment tribunal or court claims.

The Government says that even when the third party harassment provisions are repealed, employees will have other avenues of legal redress, such as claims of negligence or constructive dismissal, as well as the ability to bring a claim under the Protection from Harassment Act 1997. All these avenues have their difficulties, as will any post-repeal attempts to rely on the more general harassment and detriment provisions of the Equality Act. Employers may find themselves at risk of a claim after just one ‘strike’, not three.

Risk
For employees, the most pressing consequence of harassment is likely to be the extent to which it manifests in mental or physical harm. The family of Roman Romasov, a Lithuanian worker at Sainsbury’s, are dealing with the consequences of the harassment he suffered at the hands of a BNP-supporting colleague, currently serving life in prison for his murder Vaickuviene and others v J Sainsbury plc. While not an instance of third party harassment, it starkly illustrates the worst possible consequences of workplace harassment.

A repeal of the third party harassment provisions must ensure the law continues to offer an appropriate remedy for individuals, who may have been subjected to the type of race and sex discrimination meted out to two black female waitresses in the 1990s during an after-dinner appearance by Bernard Manning.


Roger Tynan is a partner in the employment department of Maclay Murray & Spens LLP.