What Employers Need to Know about Third-Party Harassment and the Employment Rights Bill

Sections of the Equality Act 2010 that made employers liable in certain circumstances for third-party harassment were repealed in October 2013. 

Since October 2024, employers are to take reasonable steps to prevent sexual harassment of their employees, including by third parties. 

Clause 18 of the Employment Rights Bill will reintroduce employer liability for third-party harassment for all relevant protected characteristics (age, gender reassignment, disability, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation) by amending the Equality Act 2010. This will mean that in addition to an employer being prevented from harassing their own employees or job applicants, they must also not permit a third-party to harass their employees. This is a significant expansion in liability and therefore risk for employers.

Once the new law comes into force, employers can be held accountable if they fail to take all reasonable steps to prevent third-party harassment in the workplace. This is a significantly higher threshold than “reasonable steps”. An employer will have allowed a third party to harass an employee where the following happens:

1. A third-party harasses the employee during their employment with the employer

2. The employer fails to take all reasonable steps to prevent the third-party from harassing the employee during their employment

A third party mean anyone other than the employer or one of its employees and is likely to include contractors, clients, customers and suppliers. For employers that have staff coming into frequent contact with third-parties, such as the retail and hospitality sectors, the duty to take all reasonable steps to prevent harassment could be difficult to meet. This is particularly the case as employers have fair less control over the actions of third parties than employees working for them. What is reasonable will depend on the circumstances including the size and resources of the employer. 

Employers are encouraged to keep a track of the Bill’s progress through Parliament and consider implementing steps now to protect their staff from third-party harassment. Steps to consider include:

3. Clear Anti-Harassment Policy - Implement and communicate a strong anti-harassment policy that clearly covers third-party harassment, including actions by customers, clients, contractors, or anyone else not employed by the employer. This policy should outline what constitutes harassment and the consequences of such behaviour. Other policies should be reviewed to ensure that they interact well with the anti-harassment policy. 

4. Awareness of Policies – Employers should ensure that all workers are aware of their anti-harassment policies. They should be published in an easily accessible part of their external-facing website meaning that they can be accessed by third-parties. 

5. Install a public notice – This can inform third-parties that harassment of its employees is unlawful and will not be tolerated

6. Training - Provide regular training for both employees and managers on how to recognise, report, and handle third-party harassment. Ensure managers understand their responsibility to protect employees and respond appropriately to complaints. In industries where third-party harassment from customers and clients is more likely, training should be provided on how to address such issues. For example, in a call centre, a manager may need guidance on what to do in the event of a worker receiving an abusive phone call.  In a pub, the manager might need guidance on what to do in the event of physical or verbal abuse of staff. Employers should keep records of training. 

7. Employee guidance – Whilst employers are responsible for preventing third-party harassment, workers can take steps to protect themselves and staff should be provided with training and encouraged to:

a.   Be assertive and firmly uphold their boundaries with third parties and communicate in a clear, professional manner if those boundaries are violated.

b.   Call out any harassment from third parties, whether directed at themselves or a colleague.

c.   Refrain from engaging in or supporting any behaviour from a third-party when it is evident that the recipient does not welcome it.

d.   Promptly report any instances of third-party harassment to their manager or supervisor for appropriate action.

8. Effective Reporting  Processes  - Establish accessible, confidential reporting processes for staff to report any harassment from third-parties. Employees should feel safe knowing that they can raise concerns without fear of retaliation.

9. Detecting harassment – Employers should proactively seek to be aware of what is happening. There may be warning signs of harassment, e.g. sickness absence, change in behaviour, comments in exit interviews or avoidance of a certain colleague. Employers should give staff opportunities to raise issues with them, for example, through informal one-to-ones, sickness absence or return to work meetings, meetings about performance, open door meetings, exit interviews and post-employment surveys. Employers should keep records of how they detect harassment. 

10. Act on Employee Suggestions - Take employee input seriously by considering initiatives proposed by your staff. If employees suggest actions or improvements, such as setting up a forum for raising concerns, ensure that these suggestions are acted upon and well-documented.

11. Monitor High-Risk Situations - Identify roles or situations where employees are more likely to face third-party harassment, such as customer-facing positions. In these high-risk areas, ensure there is additional supervision, support, and guidance to help prevent incidents.

12. Contractual Clauses with Third-Parties - When possible, include specific clauses in contracts with third-parties that hold them accountable for any harassment perpetrated by their employees or clients. This helps establish clear expectations and responsibilities on the part of external partners.

13. Supportive Environment - Cultivate a workplace culture that encourages employees to speak up about third-party harassment. Make sure they know their complaints will be taken seriously and handled appropriately.

14. Thorough Investigation and Response - When an incident of third-party harassment is reported, act promptly to investigate and resolve the issue. Appropriate actions may include limiting or ending business relationships with offenders, sending a strong message that such behaviour will not be tolerated.

15. Risk Assessments - Regularly assess your workplace environment and conduct risk assessments to identify areas where third-party harassment is more likely to occur. Periodically adjust your preventive measures based on these findings.

16. Support Services: Provide employees with access to Employee Assistance Programmes or similar support services. These can help staff members cope with the emotional and psychological impact of harassment from third parties.

Taking these actions demonstrates a proactive approach to handling harassment and helps protect your business from potential legal and financial consequences and fosters a safe and supportive working environment for your staff.

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Article by

Sally Eastwood

Senior Associate

0800 915 7777

For further guidance on post-termination restrictions and ensuring your employment contracts are properly drafted, it’s advisable to seek advice from an experienced employment law solicitor. 

At Springhouse Solicitors we offer a range of services, so please contact our friendly customer services team to discuss further via  hello@kilgannonlaw.co.uk or  0800 915 7777.

Disclaimer 

The above provides a general overview of areas in employment law and is not intended nor construed as providing specific legal advice.  This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice.

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