Whilst most businesses would not condone the harassment of their staff by third parties such as clients, customers, suppliers, pupils or parents, how proactively they seek to prevent it (and how successfully) is perhaps a more difficult question to answer. However, this is a question that HR and senior leaders will need to contend with if a new law comes into effect which makes employers potentially liable for the harassment of their employees by third parties during their employment. In this context, a 'third party' means anyone other than the employer or one of its employees.
Private Members' Bill
The Worker Protection (Amendment of Equality Act 2010) Bill (the Bill), which has not yet become law, seeks to introduce this protection. It is a Private Members' Bill currently awaiting the next stage of the parliamentary approval process. Alongside protection against third-party harassment, the Bill also seeks to impose a new duty on employers to prevent workplace sexual harassment.
In the same way that the existing harassment protection works under the Equality Act 2010, if the proposed changes take effect, any alleged third-party harassment will need to be linked to a relevant protected characteristic. Nonetheless, if enacted it would significantly widen the scope of employers' existing liability for the harassment of staff by other employees. In addition, there will be a corresponding onus on organisations to take reasonable steps to mitigate against such third-party harassment in order to have a viable defence. However, with ever-changing government priorities and delays, it is uncertain as to when, and even if, the Bill will become law.
If you are having deja vu about employer liability for third-party harassment, then you are not mistaken. This was previously unlawful under the Equality Act 2010 until the relevant provisions were repealed in 2013, albeit with a few important differences to the current proposed changes. Previously, businesses could successfully defend themselves against an allegation of third-party harassment in circumstances where they had taken reasonable steps to prevent it and where there had been no more than two prior incidences of third-party harassment against an employee. However, under the former 'three strikes' provisions, a third instance of third-party harassment would potentially trigger liability for the employer.
The proposed new liability is more onerous on employers. Should the Bill come into force, a one-off incident of third-party harassment would be sufficient to trigger employer liability unless all reasonable steps have been taken by the organisation to prevent it.
The Birketts view
There is unlikely to be a one-size-fits-all approach to preventing third-party harassment; the size, nature and resources of the organisation are all likely to be relevant in determining what reasonable steps are deemed necessary. As a bare minimum, the following steps should be considered.
- Policies: guidance and policies to make it clear that third-party harassment is not tolerated, together with procedures for reporting any incidences and detailing how they will be dealt with. Training staff and third parties on the content of your policies will also be an important action to take in order to demonstrate the 'all reasonable steps' defence.
- External communication: sharing anti-harassment policies with third parties will also need to be actioned. This could take a variety of forms depending on the relationship with the third party, for example forming part of a supplier agreement, appearing in school/parent contracts and inclusion in customer commitment agreements.
- Notices: displaying signage and ensuring it is highly visible and easily noticed by third parties stating a zero-tolerance policy of any form of third-party harassment might be appropriate in some workplaces. Focusing on the places where third parties could be physically present at the organisation (for example reception areas for doctor's surgeries, notices displayed in classrooms or areas that sub-contractors or suppliers frequently visit) will be key. Anti-harassment wording could even form part of a pre-recorded telephone message played during on-hold time or on email sign-offs.
- Action: in the event of third-party harassment occurring, the action that follows to address it and to demonstrate your organisation's no-tolerance approach is also likely to be a vital to the 'all reasonable steps' defence. Again, this could take many different guises which will need to be tailored appropriately to the relevant third party. For example, the termination of a supplier contract, financial penalties, additional training, or student disciplinaries.
Even if the Bill doesn't eventually become law, it is undeniable that taking proactive steps against any form of harassment of your organisation's employees will put your organisation in good stead to mitigate the risk of complaints, grievances and disputes. It is also an essential component of a good ESG strategy. Ultimately, this will help set the tone and culture of the organisation and positively impact the reputation, retention and attraction of staff and customers, so is not something to be ignored.
Join us for an employment law update and a look at what ESG means for HR at our forthcoming Early Birds seminar on 27 September, in Sevenoaks, Kent. For more details and to book your free place see: https://www.eventbrite.co.uk/e/early-birds-putting-the-hr-into-esg-sevenoaks-tickets-629928883247
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.