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Lyons Davidson’s Employment Law department has submitted a response to a recent government consultation on employment law, covering employers’ liability for third-party harassment of employees.

The Equality Act 2010 introduced liability for employers in certain circumstances where their employees are harassed by third parties – such as customers or suppliers – related to a protected characteristic, including race and sex. For liability to be incurred, the employee must have been harassed on two prior occasions by the same (or different third party), and the employer must have known about the incidents and failed to take reasonable steps to prevent future harassment.

The government’s proposal to remove this provision from the statute book is part of its ‘red tape challenge’ to repeal unnecessary legislation. The proposal is to abolish employers’ liability in such circumstances, on the basis that other legal remedies are available in the relevant circumstances and the provision is infrequently used.

Harassment law and third-party harassment law

Lyons Davidson disagrees with the proposition that, simply because a legal action is infrequently brought, it is therefore unnecessary. By analogy, if the murder rate was reduced to zero, surely no one would expect it to become legal! Lyons Davidson has been involved in actions encompassing claims for third-party harassment, acting for both employer and employee, suggesting that the protection is perhaps not as infrequently invoked as the government believes.

Constructive unfair dismissal

The government set out the proposition that other legal avenues provide adequate protection. We disagree. The government refer to claims of constructive unfair dismissal and claims under the Protection from Harassment Act 1997; however, the former requires an employee to resign – an unattractive option – and the latter requires conduct of the sort of gravity that would sustain criminal liability.

Lyons Davidson is of the view that, from the perspective of employers, the provision offers adequate safeguards: there must have been at least three incidents of harassment; the employer must have known about the first two incidents; and the employer has a “reasonable steps” defence. Responsible employers will no doubt act in a way that provides them with protection from such claims. On balance, Lyons Davidson feels that the provision should be retained.

The government response is eagerly awaited.

For more information on the issues raised in this article or on employment law matters in general, please contact our Leeds Employment team.