Protecting workers from sexual harassment by third parties is not a new concept. Sexual harassment by customers, visitors, service users and other non-employees in the workplace is one of the most common forms of harassment that workers face. Those of us who have been working in this area for long enough will be very aware of what was known as the "Bernard Manning case" in the late 1990's. In that case the Employment Appeal Tribunal held De Vere Hotels Ltd responsible for the racist and sexist discrimination (there was no statutory definition of harassment at that time) against waitresses working at a function taking place at one of their hotels where Bernard Manning was the after-dinner speaker.
The principle in that case was overruled by the then House of Lords (now Supreme Court) in a different case in 2003. That meant that, at that time, an employer would only be liable for third party harassment if it had a discriminatory reason for failing to prevent the harassment or if the way that the employer dealt with the harassment amounted to discrimination against the employee. Subsequently, in an attempt to comply with EU law a new provision was inserted into the Sex Discrimination Act 1975 stating that an employer would be liable for third party harassment if the employer knew harassment by a third party had taken place on at least two previous occasions. This provision was initially extended to apply to all the protected characteristics when the Equality Act 2010 came into force but was subsequently repealed on 1 October 2013.
The new duty to prevent sexual harassment
When the Worker Protection (Amendment of Equality Act 2010) Act 2023 (the Act) was first proposed, it included a provision intended to re-introduce employer liability for third party harassment. However, following amendment by the House of Lords before the Act became law, that provision was removed. The effect of that was to remove the right to make a claim against the employer should third party harassment occur.
However, what the updated EHRC technical guidance makes clear is that the broader duty on employers to prevent sexual harassment includes prevention of sexual harassment by a third party. While an individual worker cannot make a claim against their employer to an employment tribunal for a breach of the duty, "if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached". Where such a failure occurs, the EHRC can take enforcement action against the employer. The EHRC enforcement powers include investigations, unlawful act notices, injunctions or interdicts and public sector duty assessments and compliance notices. In some circumstances this can, via the EHRC taking action through the courts, result in unlimited fines. Given the EHRC's upcoming three-year strategic plan sets out their number one focus in workplaces as being sex discrimination, harassment and/or victimisation, including sexual harassment we can expect to see action being taken in this area.
Employers should also be alive to the fact that they can still be liable in an employment tribunal in relation to third party harassment if the way they deal with it amounts to discrimination or victimisation against the employee.
What should employers be doing?
Employers should not be lulled into a false sense of security as regards third party harassment by the removal of the clause designed to re-introduce employer liability for it. Employers will still be required to take reasonable steps to prevent sexual harassment by third parties taking place. What is reasonable will vary depending on factors such as the size and resources of the employer, the working environment and the sector it which it operates. Employers must consider the risks of sexual harassment occurring by their own employees or third parties and the steps it can take to reduce and prevent it occurring. It should then implement which of those steps it would be reasonable for it to take. Reasonable steps may well include having an effective and regularly reviewed anti-harassment policy, taking steps to risk assess where sexual harassment may occur and provision of training for workers. Although a final version of the updated technical guidance has not yet been published, a copy of the current version can be found here.
