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Law for Business

Knowhow - guidance - precedents

13 DEC 2013

Third Party Harassment

Pam Loch

Managing Partner


On 1 October 2013 the Government repealed section 40 of the Equality Act 2010 which made employers liable in certain circumstances for acts of harassment of an employee carried out by a third party.  However, what impact this will have on employers and potential claims against them remains to be seen as there are other alternative routes for employees to take if they decide to bring a claim.

The Government thought the existing provisions were a burden on employers which imposed additional liabilities which in these difficult economic times, could have a detrimental effect on businesses.  But what is the effect in practice?

Without the specific provisions in the Equality Act 2010, employers who fail to prevent third party harassment in the workplace could still face claims for:

  • direct discrimination (and subsequent less favourable treatment because of a protected characteristic);
  • harassment on the basis that the employer has failed to protect the employee from a degrading, humiliating or hostile environment;
  • constructive dismissal on the basis of a breach of trust and confidence; and
  • a breach of the Protection from Harassment Act 1997.

Employees have the option of bringing some of these claims in the Employment Tribunal or the Civil Courts. The benefits of pursuing claims through the Civil Courts are that employees will have the advantage of the 6 year limitation period, they can bring a free standing bullying and harassment claim (without the need to identify a protected characteristic) and there is no statutory defence to the claim. 

On the downside, a claim in the Civil Courts must establish there was what is known as a course of conduct ie 2 or more incidents. Whereas a claim in the Employment Tribunal can be brought in relation to a single incident. The impact of the repeal in our view is likely to be minimal.

Pam Loch, Managing Partner of niche employment law practice, Loch Associates Employment Lawyers and Managing Director of HR Advise Me Limited.  

For more information on Loch Associates Employment Lawyers please go to www.lochassociates.co.uk and for HR Advise Me go to www.hradvise.me


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