Third party harassment protection - will it return?

The Equality Act 2010 originally contained provisions that protected employees from harassment committed by third parties for example, a contractor, or client of the employer. However, these were repealed in October 2013 and, since then, an employer has not been able to be held liable for harassment of its employees by third parties (except in very limited circumstances).

This may change if the Worker Protection (Amendment of Equality Act 2010) Bill, which passed its second Parliamentary reading on 21 October 2022, becomes law.

The Bill seeks to introduce the following changes to the Equality Act:

1. Introduce a preventative duty on employers to take all reasonable steps to eliminate sexual harassment in the workplace, enforceable by the Equality and Human Rights Commission (EHRC).
2. Introduce an uplift in compensation (of up to 25%) for individual complainants if a tribunal finds that an employer has breached this duty.
3. Reinstate protections for workers from harassment from third parties such as clients, customers and patients which will also be enforceable by the EHRC, and by the Employment Tribunal

If passed, the EHRC will produce a statutory Code of Practice, based on its existing guidance on sexual harassment and harassment at work, to support employers. This Code will set out the steps that employers should take to prevent and respond to sexual harassment to comply with its duties. 

Whilst this would represent an important step to help protect victims of, in particular, sexual harassment more fully, it does place greater responsibility on employers to take positive steps to protect their employees against potential inappropriate behaviour from third parties that the employer may have very little, if any, control over.

Employers are unlikely to need to review their policies and practices anytime soon however. As a Private Members bill, it could take some time to become law, if in fact it ever does.

The Bill has been sent to a Public Bill Committee, which will meet on a date yet to be announced. That committee can make amendments to the Bill. The amended version of the Bill then returns to the Commons. To become law, it must also successfully negotiate report stage and third reading, as well as the House of Lords. In practice, most Private Members bills never end up becoming law.

Other Private Members Bills currently progressing through the bureaucratic process include:

• Carer’s Leave Bill - to make provision about unpaid leave for employees with caring responsibilities
• Employment (Allocation of Tips) Bill - to ensure that tips, gratuities and service charges paid by customers are allocated to workers
• Employment (Application Requirements) Bill - to regulate the use of minimum qualification or experience requirements in job applications; and for connected purposes
• Fertility Treatment (Employment Rights) Bill - to require employers to allow employees to take time off from work for appointments for fertility treatment
• Miscarriage Leave Bill - to make provision for three days of paid leave for people who have experienced miscarriage ectopic pregnancy or molar pregnancy before 24 weeks
• Working Time Regulations (Amendment) Bill - to make provision to amend the Working Time Regulations 1998 to reduce the maximum working week from 48 hours per week to 32 hours per week and to provide for overtime pay; and for connected purposes.