Third Party Harassment
April 21, 2008
On 6th April an amendment to the Sex Discrimination Act came into place which means that employers can now be found to be liable for the sexual harassment of staff by another person who is not an employee of the company. This law was already in place for harassment by colleagues in the same organisation, but now employers need to be aware of ‘third party’ harassment, and need to take measures to prevent it in the workplace. Third party harassment could come from customers, suppliers, or any other people encountered during work time.
This obviously poses some difficult questions for some employers. An employer will be liable if the complainant can show they were subject to sexual harassment on three separate occasions, however this does not have to be from the same person each time. So measures to stop the harassment on the first or second occasion, such as banning the customer from the establishment (for example in a shop or hotel situation) wouldn’t necessarily save the company from liability the third time. Of course, it is much more difficult for employers to exert any authority over people outside the organisation, and with a large proportion of UK workplaces now being in the service sector, it will be difficult for many organisations to move away from the ‘customer is always right’ attitude. However, for claims under the Sex Discrimination Act, there is no upper limit to the amount of compensation that can be awarded, and therefore employers need to take note of this new requirement of the legislation.
Employment lawyers recommend revisiting harassment policies to ensure the law is covered, and taking measures to reduce the risks such as putting up signage to warn customers that harassment of staff is not tolerated and taking employees out of high risk situations.
I think this is a piece of legislation that will be tested in case law quite quickly, and it will be interesting to see exactly how the tribunals expect employers to deal with sexual harassment by a third party. This will hopefully give more clarity on what preventative measures employers are expected to take, and where the limits lie on what realistically can and cannot be achieved.
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