Under the present Law employers are liable for workplace harassment by one employee against another unless they can show that they took “all reasonable steps” to prevent that harassment from occurring.
Clause 20 of the Employment Rights Bill, in its current form, seeks to make employers liable for harassment of any of its employees by third parties, unless the employer has taken “all reasonable steps” to prevent it. This liability would apply to all forms of harassment, not exclusively sexual harassment and imposes an extremely high standard on employers.
The Law in England and Wales used to have a tempered form of liability for third party harassment, which was arguably very wisely abolished in October 2013 by the previous Conservative government. Before then, employers only faced liability in respect of third parties if the employee had been harassed by a third party on at least two distinct occasions (bearing similarity to the requirement in civil and criminal law for a “course of conduct” under the Protection from Harassment Act 1997). As it stands, the Employment Rights Bill will make employers liable from the first occurrence.
The introduction of liability for third party harassment should not be underestimated—it would be a marked change bringing with it significant consequences for employers (particularly in service industries).
How might an employer demonstrate that it has taken reasonable steps to prevent third parties harassing its employees, especially if they hold customer-facing roles? How will an employer reasonably mitigate the risk of an employee being offended by political conversations taking place around them? In practice, how can an employer prevent an employee being approached by an inappropriate customer?
If an employee alleges harassment against a third party, how does an employer deal with the evidential challenges of defending the claim? How could an employer oblige third parties to participate in a confidential investigation process? How is an employer able to make a fair decision that would stand up in the Tribunal in the absence of testimony from the third party?
Requiring employers to bear the burden of liability for third party harassment is highly controversial and arguably a step too far—It was most recently debated in Parliament in 2023, but was scrapped for being too divisive. We await to see how clause 20 of the Employment Rights Bill will progress. It is in the meantime prudent to ensure policies and practices are fully updated to address the anticipated preventative duty: We discuss what action employers should be taking here.
The government still has time to think again…
