Protection Against Harassment by Third Parties

Harassment of employees in workplaces is unfortunately all too common. We often hear stories of staff being catcalled whilst at work, or being bullied for their race or sexual orientation. The current law protects employees from this treatment from within their organisation, but not from third parties.

Harassment can occur in any workplace, it is however commonly reported in the service industry, where employees are particularly vulnerable to mistreatment by members of the public.

It is for this reason that Parliament is in the process of passing and enacting a new law which will protect employees from harassment from third parties.

What was the old law?

The old law (before it was repealed in October 2013) protected employees from harassment by third parties in the course of their employment and made employers liable for such behaviour if they had failed to take reasonable steps to prevent it and knew that the employee had been harassed on at least two other occasions by a third party (whether the same third party or not).

What is the new law?

Under the new law, there will be no requirement for the employer to have knowledge of previous acts of harassment by third parties. The employer could be liable from the first act of harassment, which could be one comment directed at an employee.

Employers will also be obliged to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment, including by third parties.

The law will not hold employers liable for people expressing political, moral, religious or social opinions, so long as that opinion isn’t sexual, isn’t aimed at the employee and is not indecent or grossly offensive.

Who is a third party?

A third party is anyone not employed by the same company as the employee and so will include, but not be limited to, customers, patients, agency staff, site workers, cleaners and/or delivery staff.

What does this mean for Employees?

For employees this offers greater protection in the workplace, and the knowledge that if they do suffer harassment in their job at the hands of a third party, they can expect their employer to listen and to act to prevent it.

They will also have an option to claim compensation from their employer if they have not been sufficiently protected.

What does this mean for Employers?

• For employers, this means positive steps are needed, to prevent the risk of grievances, low morale, lower productivity and high turnover, as well as the inevitable claims.
• As with harassment within the workplace, the employer has the potential defence of having taken all reasonable steps to prevent the third party from harassing its employee. But for this defence to hold, employers need to start taking action to protect their employees now before the legislation hits.

Although not yet law, the Bill has had its second reading in the House of Lords and is likely to become law as soon as Summer 2024.

What steps should Employers be taking?

Steps that employers could be taking now include:

• Updating Anti-Harassment policies to cover third party harassment
• Notices on site to deter harassment
• Provide training on harassment
• Provide support through an EAP to affected employees
• Adopt a zero-tolerance approach to harassment both internally and externally
• Encourage open communication about harassment
• Adopt zero tolerance to retaliation and victimisation
• Consider independent complaints reporting systems

For more advice about these steps and how to implement them, please reach out to our employment team, who will be happy to offer advice and guidance.