New legislation means employers could be liable for employee harassment.
The employee will be able to claim against the employer if the following conditions are met:
- the harassment by the third party occurred in the course of their employment;
- harassment had occurred on at least two previous occasions, whether or not the harasser was the same third party; and
- the employer failed to take reasonable steps to prevent the harassment from happening again.
This Act protects employees from any harassment ‘related to’ a ‘protected characteristic’ rather than ‘on grounds of’ the protected characteristic, as the law used to provide. This means that the employee does not now even have to possess the protected characteristic in order to succeed in the claim. A claim could be brought, for example, in relation to harassment based on a relative’s protected characteristic. Likewise, a claim could be brought where an employee was harassed by a third party who mistakenly believed the employee possessed the protected characteristic.
A 'third party' can be any person other than the employer or the employee. This includes, for example, all visitors to business premises, clients and customers of the employer and external suppliers.
Harassment ‘in the course of the employee’s employment’ includes harassment that occurs during, for example, client meetings, networking events and meetings with contractors.
As stated above, a claim cannot be made unless the employer knows that the employee has been harassed by a third party in the course of their employment on at least two previous occasions, and the employer has not then taken reasonable steps to prevent the harassment. This is known as the 'three strikes' provision.
It is important to note that three instances of harassment by the same third party of different employees will not be 'three strikes,' however, three instances of harassment by different third parties of the same employee will be.
The introduction of the Equality Act will generally require employers to review and update their policies on equal opportunities. This particular new provision will likely also necessitate the review of any policies specifically dealing with bullying and harassment. Just Employment Law will be pleased to assist clients with this process.
Policies should specify what employees should do if they experience harassment. It is recommended that employees are advised to report any single incident of harassment, in order that the employer can take steps to avoid reaching the 'three strikes.'
Depending on the nature of the business, it might also be appropriate to display notices to bring to the attention of clients, customers, etc, that inappropriate behaviour towards staff will not be tolerated.