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Third Party Harassment in the Workplace

Wednesday, 9 November 2011

Employers and Employees alike need to be aware that there are currently rules in place that protect employees from harassment by third parties. These rules originate from case law, including the decision in Burton and another v De Vere Hotels Ltd [1997]. In that case, the comedian, Bernard Manning had subjected two of the Hotel's employees to racist and sexist jokes during his performance. The Hotel was found to be liable for the harassment of the two employees, despite the fact that Bernard Manning was not their employee. They were held liable for failing to prevent the harassment from taking place.

The Government has recently branded the current rules "unworkable" and announced that it would be consulting on their removal from the Equality Act, however the rules are still in place. The current rules provide that employers will be liable for harassment where:

· A third party harasses an employee in the course of the employee's employment;

· The employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so; and

· The employer knew that the employee had been harassed in the course of employment on at least two other occasions by a third party.

Accordingly an employee must show that they have suffered harassment at the hands of a third party on at least three separate occasions. There is no limit as to whom may be considered a third party, employers can be liable for the actions of customers, contractors, suppliers and even members of the general public.

An employer can escape liability for third party harassment under the Equality Act where it has taken "reasonable steps" to prevent it. There are certain measures that employers should put in place to build a defence under the act. These are:

  • To have a clear policy on harassment, which includes a section on third party harassment, making sure that all employees are aware of it.
  • By bringing your policy to the attention of contractors, customers and suppliers and displaying a public notice reminding the general public how staff members should be treated.
  • Not ignoring the harassment or waiting for the victim to complain. The Employer should take positive steps to deal with the situation as soon as it becomes apparent.
  • Investigate the issue and take steps to deal with the problem, such as speaking to the perpetrator.
  • Keep up to date with the law.

All of the above will show a Tribunal that an employer takes equal opportunities and diversity seriously and is prepared to protect its employees from harassment.

If you have been a victim of harassment or would like more information on this issue or any advice on drafting policies etc please contact the Employment Law Department at Rollingsons Solicitors on 020 7611 4848