10 Jun 2014
A mere couple of years after the Equality Act (EqA) 2010 came into force, the provision relating to third party harassment has removed.
Prior to the law change on 1st October 2013, s.40 EqA 2010 allowed an employee to claim against their employer directly where they could show that they had suffered harassment from a third party on at least two prior occasions and that their employer knew of this previous harassment.
A potential defence was to show that the employer had taken reasonable steps to prevent the harassment occurring. The third party did not however have to be the same third party on each occasion so any action by the employer to prevent a reoccurrence had to go beyond a focus on the original perpetrator. For example, banning a customer for harassment of a staff member would be insufficient; if other customers continued such practice and no further preventative steps were taken.
On the face of it, it may seem that removal of the s.40 provision makes it more difficult for an employee to make a claim however there remains a number of routes available to a wronged party including a claim for indirect discrimination, a claim under the general harassment provision of s.26 EqA 2010, a potential constructive dismissal claim, a claim under the Protection From Harassment Act 1997, or even a claim in the civil court for a breach of duty leading to foreseeable injury. Accordingly therefore, the abolition of the “three strike rule” may even possibly make it easier for employees to sue.
This change is likely to have more supporters than detractors as the poorly drafted s.40 led to confusion and a vast amount of case law on what constituted the employer “knew” about previous harassment and what was a “reasonable step” to prevent it.
Employers would be well advised to ensure that they have clear and comprehensive polices on harassment (including third party harassment) and that they are up to date in light of these changes to the law. It is also vital that staff should be trained as to the implementation of such policies as it will not be enough to merely have a good written procedure.
For further information please contact David Lewis 01633 244233 or email email@example.com
Harding Evans is a trading name of Harding Evans LLP, a limited liability partnership, registered in England & Wales (registered number: OC311802), authorised and regulated by the Solicitors Regulation Authority (SRA number: 419663).