THE Equality Act harmonised and consolidated various anti-discrimination legislation into a single Act in 2010.
Amongst the provisions included, the Government was keen to put into statute the right for an employee to make a claim for harassment in the employment tribunal in respect of treatment suffered from a third-party outside of their employer’s business.
Currently, an employer is liable for the harassment of employees by third parties – such as customers and visitors – where it occurs in the course of their employment, where the employer failed to take reasonably practicable steps to prevent the harassment and where the employer had knowledge that the employee had been harassed on at least two other occasions by the third party.
The Government has now launched a consultation on the proposal to remove the third-party harassment provisions. It is suggested that this is unnecessary regulation which does not serve any real need, given the potential for an employee to bring alternative claims if they feel they have been subjected to harassment.
The focus of the consultation is to make it clear that employees will still have avenues open to them to challenge such acts of harassment.
Firstly, the employer has a duty under the Health and Safety at Work Act 1974 to provide a safe working environment. There is also a requirement to undertake risk assessments, which could relate to customers and external parties entering the business.
If this duty is breached, an employee may be able to bring a claim for negligence as a result of a breach of the employer’s duty of care. However, the weakness to this claim is that the employee must have suffered actual physical or psychological injury – currently in harassment claims there is no necessity to show injury.
Alternatively, an employee may consider bringing a constructive dismissal claim on the basis that the harassment amounts to a breach of contract entitling them to treat the contract as at an end. However, the employee is disadvantaged here as they would have to leave their employment to present the claim, unlike if they were to challenge the harassment under the current provisions of the Equality Act. An employee is not permitted to claim compensation for injury to feelings or personal injury caused by the harassment in a constructive dismissal claim either.
The employee may have a right of redress under the Protection from Harassment Act 1997, which is a civil and criminal offence. However, such a claim would have to be brought against the third party directly (and not the employer) so much would depend on the viability of running a claim against an individual rather than a corporate entity.
Finally, the general harassment provisions under the Equality Act may still benefit an employee who is suffering third-party harassment. If an employee can show that they have suffered unwanted conduct on the basis of a relevant protected characteristic and this has the purpose of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, they could bring a claim for harassment under the Equality Act 2010.
On the basis of the drawbacks identified above, this is likely to be the route most employees attempt to take if the Government’s proposals go ahead and the third-party harassment provisions are removed.