Government abandons legislation that would have protected workers from third party harassment
Under our current laws, it can be difficult for workers to bring successful claims against their employers for harassment they experience at work by customers or other third parties. The Equality Act 2010 used to provide specific protection but those provisions were repealed in 2013.
That looked set to change. The Worker Protection (Amendment of Equality Act 2010) Bill is currently making its way through parliament and, as originally drafted, would have made employers liable if their staff were harassed by third parties unless they could establish that they'd taken all reasonable steps to prevent it. This element of the Bill was controversial. The House of Lords worried about its "chilling effects" on the ability of people to express their opinions and the impact it would have on free speech. Much of the debate centred on hospitality staff and how the Bill could adversely impact employers whose staff might overhear comments and opinions they disliked and/or found offensive.
The Bill was re-drafted to make it clear that employers wouldn't be responsible for the harassment of staff, by people it didn't employ or control, unless their comments were targeted at their staff. That was not enough to assuage these concerns and, in order to the avoid the whole Bill failing, the third party harassment provisions have been completely removed.
During the most recent debate in the House of Lords, a Labour peer asked the government what steps it would take to protect workers from third party harassment. She made the point that this type of harassment doesn't just impact on people working in shops or restaurants and also affects those who interact with the public, such health sector workers, and needs to be tackled. The government didn't answer that question directly and the Labour peer indicated that it might revisit this issue when it is in government. So things could change - but not for a while and possibly only if we get a change in government.
This means that the remaining parts of the Bill - which deal with sexual harassment will survive (minus a tweak or two which we'll tell you about separately) and are likely to come into force next year.
What claims can staff bring if they are harassed by customers, clients and any other third party?
1. Constructive dismissal
If you fail to take action to protect your staff from being harassed by third parties you will damage the duty of trust and confidence implied into all contracts of employment. Employees will be able to resign in response to that breach and claim constructive dismissal. However, this right only applies to employees (and not the wider group of workers, such as casual or zero hours staff) and they must have worked for you for a minimum of two years.
2. Direct discrimination
In some circumstances a worker may be able to bring a claim for direct discrimination if they are harassed by a third party. To succeed they have to show that they have been treated less favourably because of a protective characteristic which they share (such as age, sex, race, disability etc).
The recent case of Mallet-Ali v Perth and Kinross Council demonstrates how difficult it is to succeed with these types of claims. It involved a teacher who was subjected to racist abuse by her students because of her Pakistani ethnicity. Her claim failed because she couldn't show that her employer had treated her less favourably than it would treat others (whose circumstances were not 'materially different' from hers) because of a protected characteristic. The tribunal decided that the school would have treated a hypothetical comparator (which it identified as a white teacher subjected to discriminatory language or behaviour by pupils) in exactly the same way. You can read our overview of the case here.
3. Indirect discrimination
To successfully bring a claim of indirect discrimination, a worker has to show that a provision, criterion or practice adopted by their employer puts staff sharing a protected characteristic at a particular disadvantage compared to others, and the employer can't justify its approach. These types of claim aren't easy to win either in the context of third party harassment.
The Equality and Human Rights Commission has produced technical guidance which gives a good example of when an indirect discrimination claim may succeed:
‘A hotel worker complains that she has been sexually harassed by a customer. Her employer says she does not take action in response to complaints because the hotel isn’t responsible for what third parties do and “the customer comes first”. It says that the employer would take no action regardless of whether the person harassed is a man or a woman.
However, this practice places women at a particular disadvantage in comparison to men as statistics show that women are more likely to be sexually harassed at work than men. It is unlikely that the employer will be able to justify her practice of taking no action as she does not have a legitimate aim. It is not a legitimate aim to prioritise customers over the safety of workers.
Why you should protect staff from third party harassment
Despite the lack of legal protection (and liability) there are good reasons to protect your staff from this sort of harassment. For a start, you'll struggle to attract and retain staff if you don't provide them with a safe workplace. That's particularly important in the current economic climate where many employers are struggling to fill existing vacancies.
Staff won't feel valued or supported if do nothing to protect them against harassment and will find employment with those businesses that do so.
Protecting staff against this sort of harassment should also be part of your ESG strategies and you'll be judged by what you do rather than what you say you do. Having a policy means nothing if your managers don't step in to support staff and deal with trouble-makers in a timely manner, or empower staff to stand up to this type of behaviour.
Practical steps you can take to protect staff from third party harassment
Most employers want to the do the right thing, but may not know where to start. Our advise is to:
1. Find out how much of a problem this is in your workplace. Ask your staff questions about their experiences: are they are being, or have been, harassed or bullied by customers, clients, and other third parties they come into contact with at work? How often does this happen? Have they reported it and if not, why not? If they did report, what happened and did they feel supported?
2. Once you have this information, find out if particular members of staff are being targeted? Do they have common characteristics (such as their race, sex or age)? You may need to focus your efforts on protecting these groups to start with.
3. Introduce a system so that staff can quickly and easily report and record incidents that happen to them or they witness.
4. Decide how you will tackle third party harassment and reflect this in your policy. This might include putting signs up which state that your organisation takes a zero tolerance approach to abuse, training managers to step in and deal with issues promptly, banning customers from your premises (or denying them service) and empowering staff to put the phone down or walk away from anyone who abuses them.
5. Decide how you will support staff experiencing harassment or discrimination. Can you move them to another position temporarily (by agreement)? Can they 'buddy up' with a colleague or a manager?
6. Deal with issues promptly, consistently and in line with your agreed approach.
7. Monitor complaints and address specific issues via training and education.
8. Evaluate your progress on a regular basis and adapt your training/education as appropriate.
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