If a third party harasses an employee, will the employer be liable for the third party's actions under the Equality Act 2010?

Prior to 1 October 2013, under s.40 of the Equality Act 2010, an employer could be liable if an individual was harassed by a third party (for example, a client or supplier) during the course of employment, in circumstances where the employer knew that the individual had been subjected to such harassment on at least two other occasions (whether by the same or a different third party) but the employer had failed to take reasonably practicable steps to prevent it.

The third-party harassment provisions under s.40 were repealed with effect from 1 October 2013, as the Government considered that the provisions did not serve a practical purpose.

Notwithstanding the repeal of s.40 of the Equality Act 2010, 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 them 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.