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Third Party Harassment to be removed from the Equality Act

13 September 2013: Picture the scene; a customer comes in and racially abuses your receptionist. The next week he does the same thing all over again. Your receptionist sues you as the employer for third party harassment. Are you liable?


Currently, under s40 of the Equality Act, if a third party harasses an employee in the course of his or her employment, and the employer fails, to take such steps as would have been reasonably practicable to prevent the third party from doing so, the employer would indeed be liable.


However, from the 1st October 2013, these third party harassment provisions will be removed from the Equality Act 2010 (s65 Enterprise and Regulatory Reform Act 2013). This means that employer liability in this situation will be covered by general case law. What does that mean?  In the well-known case of Burton & anor v de Vere Hotels EAT 1997 a hotel was liable for the failure to protect two black waitresses from being the butt of racist jokes by Bernard Manning, who was hired to entertain diners.


The 2003 case of  Pearce v Governing Body of Mayfield School HL 2003  suggested that an employer would only be liable in such a case if the reason he failed to prevent the harassment was a reason related to the race of the employee. However the Equality Act makes harassment unlawful in its own right, and so the Bernard Manning case is probably on the money.


Confused? If your staff complain about racial or other harassment by a customer, errant comedian, or any other third party, it would still be sensible to do something about it.


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