What is Third Party Harassment?
Third party harassment is the phrase used to describe harassment suffered by employees at the hands of customers, clients and suppliers. Created by the Equality Act 2010, third party harassment legislation means that employees could issue claims against their employers if they failed to protect them adequately from the unwanted conduct of third parties.
The Three Strikes Rule (now repealed)
The legislation operated in such a way that there had to have been some unwanted conduct on two prior occasions before the employer became liable for third party harassment. Known as the ‘three strikes rule’, the employee would only have a legitimate claim against an employer once they had suffered three instances of harassment. The harassment need not have been perpetrated by the same third party or be of the same nature.
Miss P worked as a receptionist in a car-hire firm dealing with members of the public on a day-to-day basis. One morning at work she is subjected to lewd comments, amounting to sexual harassment, from one of the regular customers. She is upset by this and informs her line manager. Such a situation would not have brought the third party harassment legislation into play. If, however, Miss P’s employers failed to act on the harassment that she had undergone on two previous occasions then she would have had a claim against her employer on the third occasion.
The 1st October 2013 saw the abolition of third party harassment as it appeared under the Equality Act. Under the Enterprise and Regulatory Reform Act 2013 the government removed the right to protection from third party harassment of employees, arguing that such legislation imposed unnecessary red tape on business and hampered growth and economic recovery.
The Law Prior to the Equality Act
Perhaps the most famous case in third party harassment was Burton v De Vere Hotels  ICR 1 which involved racist and sexist comments made about two waitresses by the comedian, Bernard Manning. This case established that an employer could be liable for third party discrimination where that discrimination could have been prevented.
Burton was overruled by Pearce v Governing Body of Mayfield School  a case in which a lesbian was subjected to harassment by pupils within the school. This case established that an employer would only be liable for third party harassment if it had a discriminatory reason for failing to act. At the time of this ruling, doubt was cast over whether this case complied with the Equal Treatment Directive. In order to clarify the law the ”three strikes rule” was inserted into the Sex Discrimination Act 1975. This Act was repealed in 2010 with the introduction of the Equality Act which extended third party harassment to all the ‘protected characteristics‘.
Although the three strikes rule has been abandoned by the Enterprise and Regulatory Reform Act, the other elements of harassment protection remains. Section 26 of the Equality Act 2010 concerns itself with harassment in general and has not been repealed. It is still possible, therefore, for employees to argue under section 26(1)(b)(ii) that the employer has created an intimidating, hostile, humiliating or offensive environment by failing to prevent third party harassment.
If you feel that you are being asked to put up with unwanted conduct at work then you may like to contact our legal helpline on [phonenumber] for free, confidential initial advice.