Preventing third-party harassment

Extension of employers' legal obligation

Currently employers must protect their staff from sexual harassment by third parties (see the last section).

A third party means a person other than the employer or one of its staff. This can include:

• Customers or clients
• Other people sharing the building where staff work
• People working for suppliers
• Friends and family of staff
• Delegates at a conference
• Freelancers and self-employed contractors
• Members of the public.

This is set to be extended to taking all reasonable steps to prevent a third party harassing staff (i.e. workers, employees, contractors, partners, or a director, but not volunteers) because of their protected characteristic, except if it's related to pregnancy and maternity or marriage or civil partnership.

Employers will be liable for third-party harassment if both of the following apply:

• The third party harasses the staff member in the course of their employment with the employer.
• The employer fails to take all reasonable steps to prevent the third party from harassing them.

The following concerns have been raised with the government about this:

• For employers operating in sectors where staff frequently interact with third parties, such as hospitality and retail, the duty to take all reasonable steps will be difficult to meet and any finding of third-party harassment will likely mean they have failed to do so (as this defence is, historically, very hard to establish and so rarely used).
• Employers have far less control over the actions of third parties than they have over those working for them.
• The impact on freedom of speech.

The government has attempted to address these issues by stating that:

• Harassment must have the requisite effect on staff – it must violate their dignity or create an intimidating, hostile, degrading, humiliating, or offensive environment for them. This is a subjective test and a perception that a comment is offensive may always be sufficient.
• Where an employer did not intend to create an intimidating, hostile, degrading, humiliating or offensive environment, the tribunal must consider whether it was reasonable for the conduct to have that effect. This is an objective test in which the reasonableness, and the facts of the individual situation, must always be considered.
• Employers cannot, and are not expected to, police or control every action of third parties.
• The steps that an employer can reasonably take in respect of the actions of third parties in their workplace are clearly more limited than the steps they can take in respect of their staff, and this will be taken into account by employment tribunals when considering the facts of cases.
• Courts and tribunals will be required to balance the right of freedom of expression with competing rights.

It's unclear if employment tribunals will take the government's comments into account when deciding a case, but presently there's no direct legal obligation for them to do so.