Third party harassment is one proposal in the Employment Rights Bill (ERB) which is causing concern amongst employers. Put very simply, the Bill proposes to reintroduce liability for third party harassment, which was repealed back in 2013. This could mean, for example, that employers will find themselves liable where a client or supplier harasses an employee in the course of their employment.
As the ERB continues to progress through Parliament, questions have recently been raised by the Joint Committee on Human Rights (JCHR) about these provisions. In particular, whether the ERB provides a sufficient balance of the rights contained in Article 8 (respect for private and family life) and 10 (freedom of expression) of the European Convention on Human Rights.
In this respect, the JCHR have raised the following concerns:
- Why the duty to take “all reasonable steps” in the ERB does not contain any “carve outs” for “overhead opinions” – it was considered that such carve outs would meet the aims of protecting freedom of expression and not placing impractical burdens on employers;
- Why there is no requirement for the employer to know that their employee has been harassed on at least two other occasions before attracting liability (a three strikes rule), as was the case in relation to previous third party harassment provisions;
- Why the ERB does not also enable regulations to specify reasonable steps in relation to third party harassment (as is the case for sexual harassment); and
- How the new third party duty will interact with the existing duty to take all reasonable steps to prevent sexual harassment of employees under EA 2010.
The Government has now responded as follows:
- “Carve outs” for “overheard opinions” are not necessary in the circumstances and the ERB already meets the aims referred to above as (i) any step by an employer which would result in a disproportionate interference with a third party’s right to freedom of expression would not be a “reasonable step” and (ii) employers only need to do what is reasonable in relation to their specific circumstances, which is more limited for third parties than in relation to employees.
- The requirement to know that employees have been previously harassed at least twice before attracting liability is also not considered necessary because the ERB already takes a balanced approach in defining harassment, whereas the old provisions often led to confusion.
- In relation to specifying reasonable steps, the Government plans to provide requirements for specific steps only where evidence justifies it.
- Finally, with regards to the interaction between the two duties set out above, the ERB will allow an employee to bring a third party harassment claim which will include sexual harassment against their employer. Tribunals will be required to consider whether the preventative sexual harassment duty was also breached if the claim is successful meaning that this duty will apply in the same way for both third party and employee-on-employee sexual harassment claims.
We now wait to see how the harassment provisions will function within the ERB as the Government continues to review and provide clarification in relation to those provisions and the ERB as a whole.
Please contact a member of the Employment team at Glaisyers ETL should you wish to discuss further or would like more information.
