International Employment Lawyer
While the law currently only covers sexual harassment, the ruling Labour party’s Employment Rights bill will expand the duty to cover harassment on the basis of any protected characteristic.
“In short, employers will be liable if a third party harasses an ‘employee’ – a broader definition under the Equality Act 2010 including employees, workers, and apprentices – in the course of their employment and the employer failed to take all reasonable steps to prevent the third party from doing so,” explains Littler’s Chris Coombes.
“On the current drafting, an employer could in theory be liable for a single act of third-party harassment – unlike previous third-party harassment provisions which were repealed in 2013. Therefore, it is important that employers take their compliance obligations seriously in this area of law.”
The specific dangers of third-party harassment can differ drastically depending on the employer’s industry, Coombes notes, which makes it important to think through the risks on a macro scale.
“In some cases, this may be due to the press or general public; in other cases, it may be due to sub-contractors on site. The risks of harassment by third parties will be unique to each organisation,” he explains.
“Once potential risks are identified, the employer should then consider what steps can reasonably be taken to mitigate these risks, and then implement them. This approach should be recorded in a formal risk assessment, as per the Equality and Human Rights Commission’s guidance.
“This more structured approach to assessing the risk of harassment posed by third parties is preferred by the regulator and ensures employers are taking a proactive, not reactive, approach to risk management in this space.”
Coombes further explains: “Where the place of work is being targeted and there is a risk of employees being caught up when arriving at or leaving the office, where appropriate employers may want to consider requiring employees to work from home for a period of time – to avoid any unfortunate, avoidable incidents.
“Where employees are being e-mailed and called with requests for comment by press or the public, it may be sensible to put a triage system in place – to ensure that unnecessarily hostile emails are directed to a responsible person.”
