Third party harassment

Rebecca Cairney and Mark Landon discuss the upcoming changes to third party harassment protection under the Employment Rights Act. Starting October 2026, employers will have a duty to protect staff against harassment by customers, clients, patients, or members of the public across all protected characteristics, not just sexual harassment. 

Transcript

Rebecca: Hello, everybody, and welcome to the next edition of the employment insights podcast. My name is Rebecca Cairney, and I'm a Partner based in the Weightmans, Liverpool office. I'm joined today by Mark Landon, who's a Partner in our London team. Hello, Mark. 

Mark: Hi there. 

Rebecca: Thank you for joining us. 

Mark: We are going to speak today about third party harassment. 

Rebecca: So, Mark, as we kick off, obviously, this is one of the changes that's being brought about by the Employment Rights Act, it's looking to reintroduce a duty on employers to protect their staff against harassment by a third party. So a customer, client, or patient, or a member of the public. 

Mark: Yeah. Yeah. That's right, Becky. It's section twenty-one of the Employment Rights Act. And as from this October, it's going to amend the Equality Act to reintroduce this protection against third party harassment. And a third party is essentially anyone who isn't either an employer or a coworker. 

Rebecca: Yeah. Okay. Great. Thank you. And so it might be helpful, Mark, before we get on to the changes, if you could just maybe set out some background context to the current state of protection for employees against any third-party harassment, if there is any. 

Mark: Sure. So, you recall the Equality Act 2010, outlaws discrimination in respect of nine protected characteristics, such as sex, race, religion, etcetera. And it also covers a wide number of people in the workplace. So a job applicant, current employee, maybe someone who's come in to sort of, you know, as a contract worker or whatever. And what the Equality Act does is to prohibit four main forms of discrimination, which is direct discrimination, indirect discrimination, harassment, and victimization. 

Mark: And in turn, there are three types of outlawed harassment. There's harassment related to one of those nine protected characteristics. There is sexual harassment, and there's a sort of second limb of sexual harassment where you treat somebody less favourably because they've either submitted to or rejected sexual harassment or harassment related sex or gender reassignment. And then since October 2024, there's been an added obligation on employers to take reasonable steps to prevent the sexual harassment of their staff by both coworkers and by third parties. But that's the only specific existing protection against third party harassment. 

Rebecca: Okay. Thank you. So there is some, but it's quite limited then, I suppose, is the takeaway. 

Mark: Yeah. That's right. It's only an obligation on an employer to take reasonable steps to prevent sexual harassment against your staff by third parties, albeit there are actually currently other more indirect ways an employee might challenge an employer's failure to protect them against being harassed by someone such as a customer or a client or a member of the public. 

Rebecca: Okay. Great. Would you be able to expand on that a little bit then, please? 

Mark: Sure. So I mean, bit of a history lesson here. 

Mark: The Equality Act 2010 came into force in October 2010 and between then and October 2013, there was a specific protection against third party harassment under what was colloquially called the three strike rule. 

Mark: And, essentially, what the law said during that three year period is that if, say, you were a waiter in a restaurant, and you were harassed by one the same customer or two different customers on at least two occasions, and you're complaining to management, and they've done nothing to protect you, then on the third occasion of being harassed, either by the same customer or indeed three different customers, you could bring a claim against your employer for failing to protect you. So there was this sort of two warnings, and that if you had failed to protect them on the first two occasions, you could be liable on the third. 

Mark: But, actually, in October 2013, the government repealed that provision because it had never really been used. But what it does mean is there actually, since then, has still potentially been liability for third party harassment. If the claimant can show that the reason why the employer failed to protect was in fact because of one of those nine protected characteristics. So to give you an example, and this is one that was sort of provided by the government in the code of practice, a black shop worker is subjected to racially offensive term by a customer. 

Mark: When the worker complains to the shop owner, the owner says, I'm really sorry, mate, but sadly, we've got to expect a bit of that around here now and again. 

Mark: The customer returns and continues to use the same derogatory term towards the worker, when in that situation, the shop owner might be liable for harassment related to race because his comments to the worker suggests that he thinks that black people should have to put up with racial abuse, whereas other people shouldn't have to do so. And so his lack of action, which has created this offensive environment is motivated by the workers' race. So in that scenario, you could see that there might still be a claim for third party harassment. 

Mark: But actually, you know, there are other ways in which you might seek protection. One is indirect discrimination. 

Mark: So, let's take another example. A hotel worker complains that she's been sexually harassed by a customer, and her employer says that she doesn't take action in response to complaints about sexual harassment by customers, because she feels she's not responsible for what third parties do, and the customer comes first. 

Mark: And so the employer would take no action, regardless of whether the employee harassed is either a man or a woman. Now, in practice, we know that women are at a much greater risk statistically of being sexually harassed than men. And so actually in that scenario, the female member of staff might be able to allege that the fact they do nothing, the customer always comes first, indirectly discriminates against women because they're more likely to suffer sexual harassment. 

Mark: And you could actually potentially also bring a claim for direct discrimination. 

Mark: So, let's say you have a male worker being sexually harassed by a customer. He complains to his manager, and the manager says that the worker should be flattered by the attention and doesn't do anything about it. But had the worker been a woman and had complained of sexual harassment by a customer, then the manager would have taken the matter more seriously and taken action to address it. Well, in fact, the male worker would have a direct discrimination claim because of his sex. 

Mark: Yeah. I appreciate this sounds a bit farfetched, but, you know, you might even rely upon health and safety because there is an obligation on employers to create a safe working environment, both physically and mentally. 

Mark: And actually, if you have somebody subjected to harassment, and you don't look to protect them, and they suffer psychological harm, or indeed physical harm, well, potentially, if you're in breach of your duty of care, they'd have a health and safety complaint. And I suppose the other potential existing recourse is constructive unfair dismissal. We know that with every employment contract, there's an implied duty of care, of mutual trust and confidence that must exist between employer and employee. And if I don't protect you against third party harassment, you might argue that I breached that fundamental implied duty of trust and confidence. You can't rely upon me, and you might resign and say, well, I've been unfairly, constructively dismissed. 

Mark: So, although the specific protection against third party harassment isn't currently in place other than with regard to preventing sexual harassment by a third party, there are still risks for an employer if they do nothing. 

Rebecca: Yeah. And I suppose one of the things that I wanted to mention really is, is it a bit odd, I suppose, that they've introduced a specific obligation on employers that protect staff against sexual harassment by third parties, but not in relation to the other protected characteristics? 

Mark: Yeah. Yeah. I think you're right. I mean I think a lot of people in October 2024, when this new preventative duty came in on employers to take reasonable steps to prevent sexual harassment by coworkers or third parties, you know, only, would say, well, hang on a minute. There are another eight protected characteristics here. 

Mark: And, actually, one of the things the Equality Act did in 2010 was to consolidate what were then 122 pieces of different equality into one act. And the idea is that everyone would be treated the same as regards the protection in respect of those nine protected characteristics. So why put sexual harassment on the pedestal over, say, racial harassment or religious based harassment. And I think what we're seeing in October 2026, when the third-party protection is extended to all the remaining protective characteristics, it’s sort of parliament playing catch up, if you like, and reasserting this equilibrium between sex and the other protected characteristics. 

Mark: But, you know, I think there's a degree of vulnerability. Let me explain why. 

Mark: As you know, if one coworker harasses another coworker, then an employer can be vicariously liable for it. 

Mark: And the defence to vicarious liability is that the employer says, well, I took all reasonable steps to stop staff discriminating against each other. If I was racially harassed by a colleague, and my employer went, well, we're not liable, we've taken all reasonable steps to prevent that happening. Well, if, in fact, as part of the October 2024 preventative duty with regard to sexual harassment, my employer had done additional steps to protect against that sexual form of harassment and hadn't replicated those steps with regard to race, I'm going to  argue that you haven't taken all reasonable steps to stop colleagues harassing me because you could have done more.  

Mark: So, I think what we're going to see this October, again, is a sort of consolidation whereby you're going to treat all protected characteristics the same, which will sort of restore the equilibrium between the way in which you treat the different forms of protection. 

Rebecca: Yeah. That makes sense. So, I suppose it's probably time to talk about what the new law is going to require of employers then, so when that comes in October, Mark. 

Mark: Yeah. And actually, worryingly for employers, it's I think they're a lot more vulnerable than they were under the old three strikes rule. Because if you remember between October 2010 and 2013, you were only liable if your employee had complained twice before about being harassed, and you'd done nothing about it. And it was then on the third occasion you became liable. 

Mark: But actually, as from October 2026, an employer ‘will be deemed to have permitted third party harassment if a third party harasses the employee in the course of their employment, and the employer failed to take all reasonable steps to prevent that third party harassment’. There's no two warnings. First time it happens, you can be liable. And in a sense, I think all the focus is going to be on the preventative measures. 

Mark: So if I am harassed by a customer, if I work on the reception of a hotel and I'm harassed by a guest, whatever it happens to be, and, actually, I complain of that harassment, immediately, the tribunal's focus is going to be on, did you, the employer, take all reasonable steps to prevent it? So they're going to be looking at policies and procedures and training and so on and so forth. And, you know, as we all know, hindsight is a wonderful thing when it comes to tribunal's view of what people did. I think it's likely to be a pretty onerous thing. 

I have a degree of control over my staff. So when I implement measures to train staff not to discriminate against each other, and I can punish them if a grievance is raised and so on and so forth, you know, I have a degree of control. Actually, if I run a hotel or a restaurant or I'm a train operating company, I have pretty limited control over the members of the public who wander in. Now, you know, I can put up posters, I can put up things that warn people that any act of harassment will be taken seriously, etcetera. 

Mark: But, ultimately, it seems to me that the key with this new duty to prevent or protect staff against third party harassment on any protected characteristic is going to be having the relevant policies and procedures in place, training staff to know who they should complain to as soon as they suffer any harassment, and training managers as to what to do if they receive a complaint. You know, do I throw a diner out of the restaurant? Do I tell a guest at a hotel ‘well we're cancelling your booking’?  

Rebecca: Yeah.  

Mark: And I think there is an added complication because in January this year, the government published a series of fact sheets about various aspects of the Employment Rights Act, including one around third parties. 

Mark: And the government recognised there's a balancing exercise here because, you know, members of the public have rights under human rights to freedom of expression and freedom of views. And imagine this scenario. You've got two people dining in a restaurant, and they're talking about Gaza, and they are very much in favour of the Israeli government's approach to Gaza. 

Mark: And a waiter or waitress is serving their table who is very much in favour of the Palestinian view of what's happened in Gaza and is very upset by what he or she overhears when serving the table. Now is that third party harassment? 

Mark: If you think the definition of harassment, is when person A subjects person B to unwanted conduct, which conduct either has the purpose or effect of embarrassing or humiliating or degrading. Well, those two people haven't set out with the purpose of embarrassing or humiliating or upsetting the waiter or waitress, but the effect of their conversation is just that. 

Rebecca: Yeah 

Mark: Now if you look at the government's fact sheet, it says conduct that is trivial or causes minor offense will not be sufficiently serious to meet the definition of harassment. The conduct has to have the purpose or effect of creating an intimidating, hostile, degrading, humiliating, or offensive environment. And in order to meet the test where the effect of the conduct, rather than its purpose, is that someone's been upset, it's not enough for the claimant to perceive subjectively that someone's conduct is offensive. A tribunal must also consider whether it was reasonable for the conduct to have that effect. ‘This is an objective test in which the reasonableness and the facts of the individual situation must always be considered. And even where such a test is met, courts and tribunals will be required to balance the competing rights on the facts of a particular case, including the right of freedom of expression under the European Convention on Human Rights’. 

Mark: Now you can see the point. If that waiter or waitress came to me and said, I am really upset by the conversation that is taking place, I don't think I could reasonably chuck the diners out. I think I might reasonably move the waiter to a different table and have someone else serve. Now by contrast, if the two people dining had had rather a lot to drink and were making their views known to the restaurant as a whole, I think I clearly should step in. But you can see the problem. 

Mark: You know, it is going to often be a balancing act. And as I said, I think the absolute crux of the matter will be how clearly are people trained to know who to complain to, and how well trained are managers to know what to do when a complaint is made. Because I think that, you know, although the three strikes rule won't apply any more, if in reality, the employer acted promptly, I don't think a tribunal's going to be particularly interested in a claim. And frankly, I don't think an employee will bring a claim for third party harassment. I think it's going to be if someone complains, and in their view, the employer ignores it, does very little, is ineffective in its response. 

Mark: And I think, clearly, the more an employer can rehearse these sorts of scenarios. And you can imagine, if you, you're Whitbread and you run Premier Inn hotels. You've got people working on reception, and there are often, you know, maybe one or two…. You get people who might be in the pub next door. It must be foreseeable that some of your guests are going to come back having had perhaps a little too much to drink, and, you know, they might make some inappropriate comment when passing through reception. 

Mark: That, it seems to me, you know, you do a risk assessment. You say, okay. Well, for receptionists, that is a risk. It's not a risk for somebody who works in the kitchen in the restaurant adjoining the Premier Inn because they don't have contact with members of the public. So part of your training is going to be, well, for receptionists, we've got to train them to think about these scenarios that could happen. 

Mark: Actually, if someone's a, you know, a washer upper or a sous chef in a kitchen, the chances are it's not going to be third party harassment, but there might be harassment by coworker. And so you're going to have to, I think, predict the scenarios and train people as to how to react. And, you know, I think there will be some difficult commercial situations sometimes. If you take a, you know, a law firm, for example, you know, if you have one of those legal dinners that sometimes happen, you know, those award dinners that most people try to avoid like the plague, well, you know, you have a couple of partners take some fairly newly qualified members of staff along because of a sort of a thank you for the work they've done. 

Mark: You've also got some clients on the table because you want to thank them, and it's a way of building relations. Well, you know, if one of those clients had a bit too much to drink and made an inappropriate comment to a young member of staff, you would have to make sure that, you know, there was clear training as to what that member of staff should do. And you can see them sitting there thinking, well, hang on a minute. This client pays a lot of money, you know, by fees. 

They're a valued client. I’d better not say anything. Well, you know, yeah, you do need to say something, and then we need to know how we're going to react to that and what we're going to do. So, you know, I think whilst retail and hospitality are clearly two sectors in which third party harassment is going to be an issue, you can see in something like professional services it could equally be an issue. So, you know, I think all employers are going to have to give this some serious thought. 

Rebecca: Yeah. And do you think there will be further guidance that comes out about it? Because you can see with something like this, the potential for, I don't know, maybe inconsistent decisions, you know, the first sort of few claims / cases that come out. And obviously, as cases get through and maybe go to appeal in a couple of years’ time, you know, that kind of case law authority is built up that gives the guidance on how this should be implemented. But, obviously, that's very reactive, and it would be really helpful to have something, I suppose, pre the changes coming in that would assist employers with all of this because it's not easy, is it? 

Mark: No. No. It's not. No. I think the starting point would be that when the October 2024 preventative duty came in with regard to sexual harassment, the Equality and Human Rights Commission actually updated its guidance for employers on dealing with it. And that's, I think, a good starting point. There's a lot of detailed guidance around that. The government have also promised that they will publish regulations, actually, during 2027 with regard to what are reasonable steps to prevent sexual harassment. Now by definition, I think one would have to extend that guidance to the other eight protected characteristics. 

Mark: Clearly, the better the guidance, the less likelihood for misunderstanding inconsistent approaches and so on and so forth.  

Mark: And you're right, you know. I think that it's where you will have individual cases where someone doesn't react fast enough, and you know, that will always happen. However good the guy is… I mean, you and I wouldn't have a living if we didn't have clients get it wrong from time to time. Yeah. But, clearly, the better the guidance, the more likely that a consistent approach can be taken. People will understand where the parameters are, and we're going to avoid unnecessary litigation. And, of course, a very practical problem is the sheer backlog of employment tribunal cases. 

Rebecca: Of course. Yeah. 

Mark: Because, you know, frankly, if it's eighteen months, two years till you get a hearing, it's not really much use to someone who thinks that their employer isn't taking enough preventative steps to protect them, if you’ve then got to wait two years to see if a tribunal agrees.  

Mark: So I think, again, it's all the more important to try and avoid problems arising. Keep an eye on the regulations. Keep an eye what other guidance is published. And, of course, in due course, there will be n appeal level case law, which will help interpret those guidelines. Because, however, I think, you know, however good consultation exercises are and calls for evidence and so on and so forth, there will always be individual scenarios where case law guidance will help. 

Rebecca: Yeah. Absolutely. Understood. So, lots going on and lots to keep an eye out for, going forwards. 

Rebecca: Thank you, Mark. That that was really helpful. And for everybody listening, thank you. Please do keep an ear out for other important employment law updates by subscribing to our podcast, the Employment Law Insights. But for now, if you do need any assistance with anything HR or employment law related, then please either contact myself by email, Rebecca.cairney@weightmans.com, or mark at mark.landon@weightmans.com. Thank you again, Mark. 

Mark: That's a pleasure. 

Rebecca: And thank you again, everybody, for listening. Goodbye for now.