Section 40 of the Equality Act 2010, which made an employer liable for the harassment of an employee by a third party in the course of their employment, was repealed yesterday. The provision will no longer apply for such behaviour occurring from 1st October 2013.
Whilst the Government's aim in repealing section 40 was to remove a "confusing" and "unnecessary" legislative provision, it has arguably made the law in this area less clear. Employees who are subjected to harassment by third parties will, most likely, still be able to take action against their employer under the general harassment provision (section 26) of the Equality Act 2010. Section 26 applies to harassment related to a protected characteristic (age, disability, gender reassignment, race, religion or belief, sex and sexual orientation).
An employee will need to show that the employer's unwanted conduct related to a relevant protected characteristic (i.e. inaction, or ineffective action), amounts to conduct, which has the effect of violating the employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
Employees who are subjected to third party harassment may also be able to bring an action against their employer in the civil courts for a breach of a duty of care, where physical or psychological injury is reasonably foreseeable, or under health and safety legislation, or a claim for constructive dismissal, where the employer's actions amount to a fundamental breach of the employee's contract.
We recommend that employers update their policies and procedures regarding potential harassment by third parties and, where possible, bring those policies and procedures to the attention of third parties. It is not enough for an employer simply to have relevant policies and procedures in existence, employers need to follow them too. Employees who have been victim to harassment from a third party should feel supported by their employers, for example, by way of a counselling service.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
