Can a heterosexual employee bring a harassment claim on the basis that he or she is offended by regular homophobic banter between colleagues?
If a third party harasses an employee, will his or her employer be liable for the third party's actions under the Equality Act 2010?
The Equality Act 2010 extended potential liability for third-party harassment, which was previously limited to sex-related and sexual harassment, to all the protected characteristics except marriage and civil partnership and pregnancy and maternity.
Under s.40 of the Equality Act 2010, an employer will be liable if an individual is harassed by a third party (for example, a client or supplier) during the course of employment, in circumstances where the employer knows that the individual has been subjected to such harassment on at least two other occasions (whether by the same or a different third party) but the employer has failed to take reasonably practicable steps to prevent it.
The Government intends to use the Enterprise and Regulatory Reform Bill to repeal the third-party harassment provisions under s.40 of the Equality Act 2010, on the basis that it considers that the provisions do not serve a practical purpose. The Government response to the consultation (PDF format, 275K) (on the Home Office website) on repealing the provisions confirmed that the repeal will go ahead, but it is not known when this will come into effect.
When s.40 of the Equality Act 2010 has been repealed, employees who have been subjected to harassment by a third party may still be able to bring a claim against their employer, for example for constructive dismissal if the employee resigns and claims that the employer's failure to protect him or her amounts to a breach of contract. An employer could also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced. Employers should ensure that they continue to take all reasonably practicable steps to prevent any harassment of employees.
XpertHR provides answers to more than 1,000 FAQs. But that's not all...
Request a demo today to find out how XpertHR can benefit your organisation
Can an employer restrict a job to people of a particular sexual orientation?
What "positive action" is permitted under discrimination legislation?
Do employers have to provide survivors' pension benefits to same-sex partners?
Can an employer be liable for harassment of an employee by other employees because he or she is gay?
Can an employer and/or its employees be liable for harassment on the grounds of sexual orientation where the harassers are mistaken about their victim's sexuality?
Under the Equality Act 2010, can an employee bring a claim for harassment where the unwanted conduct is not directed at him or her?
What issues should employers take into account if inviting employees' partners to a work-related social event?
Are employers required to monitor their employees' sexual orientation?
Can an employee bring a pay discrimination claim on grounds other than sex?
In what circumstances could an employer's requirements and conditions of the job lead to claims of discrimination?
In specifying the requirements for a job, what steps can an employer take to ensure that it is not liable to claims of indirect discrimination?
How can an employer ensure that its application forms are not discriminatory?
Is an employer liable for offensive and/or potentially discriminatory material or comments posted on its intranet bulletin board?
How can an employer ensure that line managers draw up a shortlist for a position without unlawfully discriminating against applicants?
Can an employer be held liable if an unsuccessful applicant provides evidence that he or she may have been discriminated against during an interview?
Does an unsuccessful job applicant require concrete evidence to prove that he or she was discriminated against?
Does a generic induction day suffice for all new recruits?
Does the Equality Act 2010 outlaw associative discrimination?