Liability for harassment in the workplace
Posted on 27th February 2023 at 13:19
We’re still keeping an eye on the EU Law Revocation Bill, but it’s a positive sign that there has been a flurry of bills to introduce new and extended employment rights. Along with the right for flexible workers to request more predictable hours and improved protection from redundancy for pregnant mothers and new parents, the government is considering the Worker Protection (Amendment of Equality Act) Bill, which would reinstate duties on employers to prevent sexual harassment by customers and contractors.
Here’s what this means for employers and how it differs from employers’ current duties.
Discrimination that doesn’t come from the employer
It is widely understood that employers have a duty not to discriminate against those that work for them. Most people would agree that nobody should have to endure discrimination to earn a living.
Unfortunately, discrimination from somebody other than the employer is a widespread issue. A recent survey by the TUC (Trades Union Congress) found that two in five BME workers had experienced racism at work in the last five years, and 15% of this came from customers, clients or patients. An earlier report found that over more than 1 in 3 cases of harassment, abuse or bullying toward young people came from someone other than the employer.
In August 2022, a theatre kicked off debate about protecting people from offence when it cancelled a scheduled comedy show after receiving complaints from staff members regarding offensive jokes about race and sex.
The form of discrimination most likely to come from somebody other than the employer is harassment - unwanted behaviour relating to a protected characteristic that creates an intimidating, hostile, degrading or offensive environment. Everybody in the workplace can affect the workplace environment, and jokes and ‘banter’ are at the heart of many tribunal cases.
An employer may be held liable where one of their employees acts in a discriminatory way in the course of employment. Whether an act was ‘in the course of employment’ will depend upon the circumstances of the case. Tribunals have considered acts in the workplace, at work events, and online interactions between colleagues
This means employers can be liable for discriminatory behaviour (and related damages) between its employees. The employer can also be liable if their employee harasses somebody else in the workplace, such as a customer or contractor.
Employers can defend themselves from vicarious liability by showing they took reasonable steps to prevent harassment. Employers often point to policies, training and grievance policies to show that they have done enough to prevent harassment.
Third Party Harassment
Third party harassment comes from a person who is not an employee of the business, such as a contractor or customer. The law has gone back and forth on whether an employer can be held liable for harm to an employee in these circumstances.
Early cases were brought under the Race Relations Act, which specifically provided for discriminatory acts carried out as an agent of another person. Many cases brought under this provision hung on whether the person being discriminatory could be classed as an agent. In Burton and Rhule v De Vere Hotels 1997, two black waitresses at a corporate event sued their employer for failing to protect them from sexually and racially offensive jokes made by the after-dinner speaker, Bernard Manning. But the court felt that the relationship between their boss and Manning was not enough to constitute being an ‘agent’. Similarly, in Kemeh v Ministry of Defence, the MoD was not held liable for comments made by a subcontractor’s employee. The court felt that a worker would require a degree of authorisation beyond the carrying out of work to be described as an agent.
Other decisions have held an employer liable not for the discrimination itself, but for their own failure to act to prevent it (R (Equal Opportunities Commission) v Secretary of State for Trade and Industry). Conteh v Parking Partners held that the employer would only be liable if their failure to act made the atmosphere worse.
The Sex Discrimination Act 1975 was amended in 2008 so that employers could be liable for third party sex harassment. The Equality Act 2010 provided protection from third party harassment based on all protected characteristics, but employees could only claim if they had previously been harassed by a third party on at least two occasions and the employer was aware of this. Like provisions for vicarious liability, an employer could defend themselves by taking reasonably practicable steps to prevent the harassment. However, the third-party harassment provisions of the Equality Act 2010 were repealed in October 2013.
The Worker Protection (Amendment of Equality Act 2010) Bill would reinstate this protection, and introduce a duty on employers to take steps to prevent sexual harassment of their employees. Employees would be able to bring a tribunal claim if the employer fails in their duty, and may receive an uplift of up to 25% on compensation.
The bill has passed through the House of Commons and is currently being considered by the House of Lords. You can keep track of progress here.
Where does this leave employees and employers?
Currently an employee cannot claim against their employer for harassment at work by a contractor or customer. If the contractor themselves is an employee of another company, their employer could be vicariously liable for them, providing the incident was in the course of employment. However, if they are self-employed, the victim of harassment is unlikely to be able to make an employment claim.
Employers may still choose to go above their legal requirements by taking proactive steps to avoid third party discrimination. But where they choose not to, employees have little legal recourse.
If the Worker Protection (Amendment of Equality Act 2010) Bill is passed, employers will once again be liable for third party harassment unless they have done all they reasonably can to prevent it. There is no need to wait until the bill is passed - you should begin thinking now about whether there is any more you can do to prevent harassment in the workplace, and how to reflect this in your policies.
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