Since October 2010, section 40(2) of the Equality Act extended the liability of employers for persistent harassment of their employees. Putting aside the public and employee relations risks of not dealing with it, while there is no longer legislation directly covering third-party harassment, an employee could still bring claims as a result. In the example given above, the behaviour towards the employee by the resident's relatives is very likely to violate dignity or create that type of environment. In addition to the statutory remedies, employers should also remember that they owe duties under the Health and Safety at Work Act 1974. Failing to prevent harassment by a third-party - be that from a customer, supplier, patient, client or contractor - could well be in breach of this duty.
Of course, if an employer fails to prevent or deal with third party harassment, it may well be a fundamental breach of contract - such as a breach of the implied term of trust and confidence - entitling the employee to resign and claim constructive unfair dismissal. Despite its repeal, protection of employees against third-party harassment is still something that the government intends to take seriously. Signs stating that any harassment towards employees will not be tolerated should be displayed in public areas. As well as acting as an effective deterrent, it also gives out the message to employees that their employer takes their safety and wellbeing seriously.


You should also consider keeping a record of any third-party harassment claims that are made by an employee. In addition to having a clear policy, it is important that all employees have some form of training on what is acceptable behaviour. This analysis may contain information of general interest about current legal issues, but does not give legal advice.
Not only were employers potentially on the hook for harassment committed by their employees, servants and agents but also by third parties over which it had little or no control, such as customers or visitors. On raising it with their employer, that member of staff is entitled to expect steps to be taken to protect them from that customer's behaviour. If that conduct has the purpose or effect of violating the employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, then it is discrimination by harassment. Direct discrimination would occur if the employer doesn't take action because of the protected characteristic itself. Take, for example, a shop that requires its employees to adopt a particular dress code and, as a consequence of this, some of the female employees are subjected to repeated sexist remarks from customers. Employees could claim for any damage, such as psychiatric injury, occurred as a result of this.


On that basis, many of the steps taken by employers to prevent a third-party harassment claim under the current law should remain in place. Given the government's view that the Equality Act will still protect employees, sympathetic Tribunals may well be inclined to do just that. This is likely to meet the definition of indirect discrimination unless the employer could show that this policy was a proportionate means of achieving a legitimate aim. Essentially, this requires the employer to ensure the health, safety and wellbeing of its employees. This will go towards ensuring that their employees, who will be dealing with you and your staff, have an expectation as to how to behave.
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