Harassment by third parties

The male only fundraising dinner for the Presidents Club charity, where hostesses were allegedly sexually harassed, has caused widespread controversy.  

There have been allegations that the attendees of the dinner were groping, making tawdry comments and propositioning the female hostesses, who were all required to wear revealing outfits.

Guests to the dinner had been told not to harass the hostesses in the event’s brochure, but there did not seem to be any consequences for non-compliance.

So are employers responsible for the acts of harassment committed by third parties?

Up until October 2013, section 40 of the Equality Act established the ‘three strikes rule’. So if there had been two instances of harassment and the employer knew about them but had not taken reasonable steps to avoid them occurring again, the employer could be held liable for harassment.

A government consultation in 2012 found ‘Nothing in the consultation responses has persuaded us that there is a case for retaining the third party harassment provisions. There is a lack of robust evidence to support calls for the retention of the provision, and in particular little evidence to support the idea that the single employment tribunal case since 2008 in some way represents the “tip of the iceberg”…’. So it was subsequently scrapped.

As it currently stands, employees may be able to argue a claim under the general harassment provisions in the Equality Act 2010. For example, an employee may try and argue that their employer’s inaction is ‘unwanted conduct’ related to a protected characteristic, such as sex, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee. However, in reality, there are inconsistent decisions from the Courts on this, so the position is far from clear.

Could this be subject to change?

In their recent report, the Fawcett Society called for section 40 to be brought back, but they suggested that it should be amended to require only one previous incident of harassment. Along with the rush of cases in Westminster and Hollywood that we have seen over the past 12 months, will it push the government to take action? We will have to wait and see.

In the meantime, if you do have any questions about harassment, seek legal advice at the earliest opportunity.

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