The purpose of this article is to answer the following questions;
- What does third-party harassment liability mean for employers?
- What are the limits to that liability?
- Is overheard banter harassment?
- How should employers prepare?
What does third-party harassment liability mean for employers?
The Employment Rights Bill will introduce a new provision to the Equality Act 2010 (EqA 2010) (the timing of this is still unknown). An employer must not permit a third party to harass an employee during their employment.
Under the Bill, a third party is defined as anyone who is neither the employer nor any of their other employees. The net of third parties is therefore thrown wide. It will include contractors, people supported in care settings and families and friends, tenants, tenants’ families and friends, other service providers or any customers or clients (not an exhaustive list).
Applying the EqA 2010 definition of harassment, employers will have to prevent (or in the wording of the new clause “must not permit”) a third party creating, either intentionally or not, a working environment for the employee where they feel their dignity has been violated or they are having to work within an intimidating, hostile, degrading, humiliating or offensive environment.
Whether the behaviour of the third party has created such an atmosphere will depend on a combination of the subjective perception of the employee and the objective assessment of the circumstances, and whether it’s reasonable for such actions to have this effect. Under the new legislation, only if an employer can demonstrate that it took all reasonable steps to prevent these behaviours from happening will they avoid responsibility.
This measure is part of the Government’s commitment to making workplaces safer and ensuring employers are actively protecting their staff not only from harassment between colleagues but also from harassment from non-employees. This has been mirrored in the Worker Protection (Amendment of the Equality Act 2010) Act 2023 and the mandatory duty to prevent sexual harassment in the workplace, which again includes the duty to prevent third-party sexual harassment (see our blog).
What are the limits to this liability?
Most reasonable employers will want to protect their employees from aggressive or unpleasant behaviour from third parties.
Taking a purely commercial perspective, an employee being subjected to any type of abuse is unlikely to be happy in their work and hence unlikely to be performing well. However, some employers worry about how the new provision will be applied. We go back to our original question: will an overheard conversation between two contractors that they classify as ‘banter’ or an exchange of opinions, be considered harassment if an employee hears it and finds it offensive?
This was an issue picked up by a parliamentary body – the Judicial Committee on Human Rights. Their role is to ensure that new legislation is consistent with the articles of the European Convention on Human Rights.
They wrote to the Government earlier this year regarding the third-party harassment provision. Most specifically, they asked why the third-party harassment provisions did not contain ‘carve-outs’ or exemptions for overheard opinions. They raised the concern that Article 10 of the ECHR – freedom of expression – could be breached by the new third-party harassment rule if such opinions were deemed harassment. The Government’s answer was as follows.
- “Carve-outs” or exemptions for overheard opinions are not necessary.
- Employers are only required to take reasonable steps to protect their employees, and interfering with a third party’s right to freedom of expression is not a reasonable step
- Reasonable steps are reasonable in the circumstances, and the responsibility will be less in relation to third parties than in respect of other employees.
This has further been reiterated by the Fact sheet produced by the Government (found here).
- Conduct that has been trivial or causes offence will not necessarily be serious enough to meet the definition of harassment under the EqA2010. It is not sufficient for a conversation to cause offence – it must meet that definition.
- Where there is no intention to cause offence, a tribunal will consider whether it was reasonable for the conduct to have that effect.
- The courts and tribunals will continue to balance competing rights within a particular case and will require any interference with the right to freedom of expression to be necessary and proportionate.
- ‘Therefore, employers cannot, and are not expected to, police or control every action of third parties. For example, this clause would not require employers to police all customers’ private conversations.’
Is overheard banter harassment?
Given the strength of that final clause from the Government’s guidance note, it’s clear that their intention is that overheard opinions/banter will not always be harassment and policing such opinions will not be part of the reasonable steps test an employer must complete. There may be occasions when opinions given in a certain way and a certain manner, perhaps with the knowledge of the effect it will have on those around, could be harassment. In those circumstances, employers will be required to step in and take reasonable steps to stop the behaviours. But it’s clear that employers are not required to generally “police” the private conversations of their tenants/contractors/service users, etc.
How should employers prepare?
- For many sectors, most notably housing and social care, third-party interactions are a key part of many of the roles of the organisations’ employees. It is important that steps are taken, and seen to be taken, to indicate the organisation’s commitment to protecting its staff.
- Notices in common areas, clauses in contracts, tenancy agreements, etc., are key to expressing clearly the expectations of third parties.
- However, those expectations must be substantiated with a culture of action if they are to mean anything. Staff should feel able to raise complaints or concerns if they are harassed or witness someone else being harassed, and feel confident these concerns will be listened to and processed fairly.
- Policies must be clear about the zero-tolerance approach to harassment across the organisation, including third parties, and staff should always be aware of the policy and its processes so they can identify harassment should it happen to them or a colleague.
- Consider drawing up risk assessments like the ones advised for the duty to prevent sexual harassment. Identify the areas of your organisation where harassment is more likely. It may be staff working in areas where anti-social behaviour is common, it may be staff working with service users who are known to treat staff with little respect, or it may be where staff are working alone, or at night, and so are more vulnerable to harassment.
- Despite some of the shock headlines and social media posts that are being circulated, employers are not expected to micromanage the behaviour of every employee and third party they meet. Do not let this chatter prevent you from deciding how you are going to create a culture where your staff feel safe and supported, and what measures are required and how you will monitor them.
Michael Brownlee is a Solicitor and Libby Hubbard is a Professional Support Lawyer at Anthony Collins.