Repeal of the third party harassment provisions in the Equality Act 2010: a good idea?

One development that has attracted the attention of clients of Employee Management Ltd’s (http://www.employeemanagement.co.uk) HR services is the Government’s repeal of the third-party harassment provisions in the Equality Act 2010 – despite significant opposition. Indeed, there are various reasons why such a move is not positive in the wider promotion of equal opportunities within the workplace.

It was in its 2011 “Plan for growth” that the Government announced that it intended to consult on removing “the unworkable requirement in the Equality Act for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties”.

According to the existing terms under the Equality Act 2010, employers can be liable for their employees being harassed by third parties such as customers or visitors. It applies where the third party harasses the employee during their employment and reasonably practicable steps are not taken by the employer to prevent the third party’s harassment, and the employer is aware that the employee had been harassed by a third party on at least two other occasions during their employment. This latter clause applies irrespective of whether the third party is the same person on each occasion.

Following consultation, it was confirmed by the Government in October 2012 that the third-party harassment provisions were to be repealed, despite this being opposed by 71% of respondents. The Government asserted that there was no evidence of the provisions serving a “practical purpose” or that they were “an appropriate or proportionate manner of dealing with the type of conduct that they are intended to cover”.

A recent government statement suggested that the implementation date for the repeal of the provisions would be March 2013. However, a spokesperson for the Department for Business, Innovation & Skills said the March 2013 date referenced in the statement was incorrect and confirmed that they are currently trying to amend it, adding that it is not yet possible to specify when the repeals will come into force.

Government statistics cite only one third-party harassment case being ruled on by the employment tribunal since the introduction of the provisions in 2008. The Government further added that there was “no direct control over” the provisions by businesses, and said that alternative legal remedies existed for employees subjected to third-party harassment.

However, the decision to repeal the provisions has drawn criticism from providers of employment law advice, who have stated that their potential deterrent effect does not seem to have been considered in the Government’s justification. It has been suggested that there is a requirement for further research establishing more statistical evidence with regard to the number of claims brought, as that as that the suggested alternative legal remedies may not be appropriate or sufficient.

Although one cited benefit of the provisions being repealed has been a reduced legislative burden on employers, such a move may actually generate greater uncertainty, with employers lacking awareness of their legal obligations and different avenues of redress being sought by employees. For all of the imperfections of the existing provisions, they have arguably helped to cultivate an expectation that responsibility ought to be accepted by HR support clients for ensuring their staff members do not face harassment from third parties.

Employee Management Ltd (http://www.employeemanagement.co.uk) is nonetheless able to provide the highest standard of informed HR advice to those employers unsure on the effect of this, and other recent legislative changes.

Editor’s Note: Employee Management Ltd (http://www.employeemanagement.co.uk) are represented by the search engine advertising and digital marketing specialists Jumping Spider Media. Email: info@jumpingspidermedia.co.uk or call: +44 (0)20 3070 1959 / +34 952 783 637.