Case law: Employer's inaction over harassment by third party can mean employer is also guilty of harassment
An employer faced with unlawful harassment in the workplace by a third party - such as a customer or visitor - should consider whether they should take action as their failure to do so could mean the employer is also guilty of unlawful harassment, if their inaction is because of a 'protected characteristic' of the victim, a ruling makes clear.
This update was published in Legal Alert - July 2018
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Under UK law, it is unlawful discrimination if someone is harassed at work because of a 'protected characteristic' – such as their age, disability, gender reassignment, marriage and civil partnerships, race, religion or belief, sex and sexual orientation. Harassment occurs when someone behaves in a way which offends someone else or makes them feel distressed or intimidated – for example, by bullying them, making abusive comments or jokes, or through graffiti or insulting gestures.
Until 2013, employers were liable under discrimination laws if they failed to prevent harassment in the workplace - not only by an 'employee, servant or agent' but also by third parties such as customers, or visitors to their premises. Liability in respect of third parties is now abolished.
However, a recent case concerned whether two 'elected workplace' officials of a trade union – held by the Court of Appeal to be its agents – sexually harassed a third party. The Court held that the officials were agents of the union, and it was therefore vicariously liable for their actions.
However, the Court also commented on the current state of the rules regarding third party harassment, particularly where a third party harasses someone at work but the employer takes no action.
The Court of Appeal confirmed that an employer's liability for third party harassment had been abolished. However, it clarified that an employer's inaction following harassment by a third party can, itself, amount to unlawful harassment by the employer. The employer can itself be guilty of harassment if the reason it took no action was discriminatory – ie the decision to take no action was because of, or influenced by, the victim's race, sex, age, disability, religion, etc. (ie a protected characteristic).
- An employer faced with unlawful harassment in the workplace by a third party (such as a customer or visitor), should consider whether to take action, as a failure to do so could mean it is also guilty of unlawful harassment - if the inaction is because of a protected characteristic of the victim
- Employers should also ensure staff are trained to deal with harassment arising at work, make it clear to customers, suppliers and visitors (for example, through signage or notices) that harassment is unacceptable, and record instances of harassment and action taken
Case ref: Unite the Union v Nailard  EWCA Civ 1203
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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