Third Party Harassment: An Update

Some readers may have attended a Law with Lunch seminar on 28^th September 2023 during which Roger Quickfall and Bryony Clayton discussed third party harassment and the law as it was, the law as it is and the law as it may be.

It may be recalled that the position prior to 1^st October 2013 was that there was an obligation on employers to prevent third party harassment. Liability would attach if the Respondent failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the Claimant.

After 1^st October 2013, there was no liability on employers for third party harassment, following the repeal of sections 40(2)-(4) Equality Act 2010 (‘EqA 2010’). The duty to take steps to prevent harassment was removed. The Court of Appeal in Unite the Union v Nailard 2019 ICR 28, CA confirmed that neither section 13 nor section 26 EqA 2010 covered liability for third party harassment, concluding that had parliament intended this it would have been done explicitly.

The Workers Protection (Amendment of Equality Act 2010) Bill is currently passing through parliament. The background to the bill is as follows:

• It was introduced by Liberal Democrat member for Bath, Wera Hobhouse on 15^th June 2022 and was prompted by the MeToo campaign and the President’s Club scandal;
• In 2018 the House of Commons Women and Equalities Select Committee conducted an enquiry into sexual harassment in the workplace. This criticised the gaps in, and enforcement of, protections from workplace harassment. The committee recommended new legislation to impose a new employer liability duty for third party harassment and general duties to prevent harassment that could be enforceable by the Equality and Human Rights Commission (‘EHRC’);
• A consultation was launched by the government in 2019 on sexual harassment in the workplace to consider, amongst other proposals, the introduction of a mandatory preventative duty that requires employers to protect workers from harassment in the workplace and introduction of explicit employer liabilities for third party harassment;
• In 2020 the Government Equalities Office’s own survey on sexual harassment in the workplace found that nearly a third of all employees surveyed had experienced some form of sexual harassment in their workplace or work-related environment in the previous 12 months;
• The government response to the consultation was published in July 21. The consultation findings were broadly supportive and the government committed to introduce new measures alongside a new EHRC statutory code of practice on workplace harassment;
• The proposal was that a claim could be brought after a single incident of harassment as opposed to previous three strikes formulation whereby employers needed to know of two previous incidents of third party harassment before they could be liable. It was proposed that there was an ‘all reasonable steps defence’ proposed.

The bill passed through the House of Commons with cross party support during 2022. The draft bill proposed:

1. An amendment to section 40 EqA 2010 which inserted subsection 1A – this proposed a general liability for actions of third parties which constituted harassment where all reasonable steps had not been taken;
2. The insertion of section 40A which imposed a duty on employers to prevent sexual harassment of employees. This would be enforceable in the tribunal and by the EHRC;
3. The insertion of section 124A into the EqA 2010 which allowed for an uplift of up to 25% on damages in the employment tribunal where there has been a failure to prevent harassment or sexual harassment.

By the time the bill reached the House of Lords, there had been a government amendment to address issues of free speech. This was intended to clarify for the employer and employment tribunal that employers were not, for example, required to shut down valid conversations or expressions of opinion between customers in a pub. There was a much lengthier clause 1 which provided that the employer was not liable for third party harassment if:

1. The conduct constituting harassment involved a conversation in which the Claimant is not a participant or a speech which is not aimed at the Claimant;
2. The conversation or speech involved expression of an opinion which was on a political, moral, religious or social matter,
3. The opinion expressed was not grossly offensive and
4. The expression of the opinion did not have the purpose of violating the Claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant.

The first reading in the House of Lords took place on 6^th February 2023. At the second reading on 24^th March 2023, there was significant debate, lasting for about an hour and a half. Concerns were expressed that employers would have to stray into the private prejudices of their staff. Clause 1 (i.e. duty to prevent all forms of third party harassment) proved controversial. Those opposed to regulation of the employer/employee relationship generally considered that parties should be free to negotiate terms. Some argued that the old laws against incitement were said to be sufficient.

An issue was also raised over the ‘all reasonable steps’ defence, it being suggested that this wording might be too onerous on smaller employers. Baroness Scott of Bybrook tried to address the issue of ‘all reasonable steps’ by explaining that the concept has been in the EqA 2010 since its inception in the context of employer’s liability and that it is well understood by employers and employment tribunals and is nothing new. What is reasonable, she said, is a question of fact for the tribunal. Factors include the work environment, the size of the organisation and known risk factors, as well as cost and practicality. She made the point that what constitutes all reasonable steps is not defined in law and we do not intend to do so as this would remove the flexibility to take a proportionate response based on individual circumstances of the workplace. The EHRC Code of Practice would offer some guidance on this to employers.

There was a third reading in the Lords on 12^th September 2023, following amendments to the bill. At that time clause 1 has been deleted entirely (such that there would be no duty to prevent harassment related to protected characteristics other than sex). ‘All’ had been removed from the ‘all reasonable steps’ defence. The uplift to compensation provisions remained.

On 20^th October 2023, the bill returned to the House of Commons for consideration. In a brief discussion lasting only a few minutes, the Commons acknowledged the compromises that had been reached to get to this position and accepted the amendments made by the House of Lords. It therefore appears that the new legislation will not contain any provisions for third party harassment generally but will cover sexual harassment cases only.

The timescales for the implementation of the statute are not clear but, in any event, the provisions will not come into force until 12 months after Royal Assent to allow the EHRC time to develop a Code of Practice.

Practitioners will need to keep abreast of the further progress of the bill. It seems likely that the new legislation will provide fertile ground for employment lawyers once in force.

Update: The Workers Protection (Amendment of Equality Act 2010) Bill received Royal Assent on the 26 October 2023.