The Enterprise and Regulatory Reform Act 2013 has repealed provisions within the Equality Act 2010 which make employers liable for the harassment of their staff by third parties.
Currently, employers are required to take reasonably practicable steps to prevent the harassment of their employees by third parties such as suppliers or customers, and must act if their employee has been harassed by a third party on at least two other occasions. These provisions will be repealed on the 1st October this year.
Explaining the reasons behind their decision, the Government claimed that there is ‘no perceived need for this sort of safeguard’ and deemed the provision ‘unworkable’ as employers have no direct control over how third parties act towards their staff members. Business minister, Jo Swinson, suggested that the repeal would bolster the business environment and boost confidence by getting rid of ‘needless bureaucracy’.
We are saddened by the repeal and feel worried about the Government’s view of robust equality legislation as ‘needless’ and ‘unworkable’, a view which has ultimately lead to yet another cut back in the amount of protection against discrimination employees are afforded in the workplace.
Ensuring staff members are not subjected to any form of discrimination whilst at work should not be dismissed as an add-on, or as ‘just another thing to do for a busy employer.’ This protection is intrinsic to positive working relationships; it can maintain high staff morale and productivity, and increase retention of staff and reduce the costs of staff turnover, as well as creating an organisational ethos which appeals to potential employees and customers alike. In fact, according to a survey carried out Business in the Community, 82% of companies who address these issues said that the public’s perception of them had been improved.
As Brendan Barber, General Secretary of the TUC, succinctly puts it, “Getting rid of third-party harassment will make working life even harder for the thousands of care home staff, teachers and health workers who suffer prejudice and abuse from those they are trying to help.”
Tackling discrimination is certainly not needless.
In addition to this, by suggesting that the third party harassment provisions are ‘unworkable’ because employers are not in control of third parties’ behaviour, the Government simply fails to see the bigger picture. If, instead of paring back the requirements to promote equality and tackle discrimination in the workplace, the government promoted the importance of engaging with this work, produced clear guidelines on how to implement equality legislation in an organisation and strengthened the legal duties placed on employers with regards to equality, companies would be more equipped to ensure employees were not the perpetrators of discrimination. Those organisations working with other organisations as third parties would then have greater piece of mind that their employees would be safe from suffering harassment, as all companies would be bound by robust equality duties.
But how can employers ensure employees are protected when the third party is not an organisation, but a service user, such as a patient in a mental health facility or school child? For us, this is where training and education on issues of equality and diversity becomes so important. It is not only the staff members of an organisation who require the skills and knowledge to promote equality and tackle discrimination in the workplace, but the service users as well. Employers must have a moral obligation to their employees to ensure that they are protected from harassment or discrimination by service users, especially as legal protection from this is now dwindling, and we believe that educating service users about these issues is the most effective way to decrease employees’ susceptibility to harassment by a third party. Where training for service users is not plausible, for example if your service users are customers in a pub or patients at a doctors surgery, other methods of protecting staff from harassment, such as codes of conduct and barring, should be enforced.
Ultimately, we must take a holistic approach to equality; rather than simply throwing our hands in the air saying ‘well, employers can’t guarantee how third parties will act towards their employees,’ the government must instead find ways to ensure that employers are confident that the organisations and service users they work with are fully trained and knowledgeable in issues of equality, so that third party harassment is no longer seen as a concern. By taking this approach, we believe that tackling discrimination is certainly not unworkable.
Despite our criticisms on the government’s decision to repeal this provision, it seems that all is not lost for the targets of third party harassment. The general harassment provisions in the Act can, in some cases, provide protection for an employee who has been harassed by a third party. Third party harassment can be considered harassment by the employer, where an employer knows that third party harassment is taking place but has not taken reasonable steps to prevent it. A third party harassment claim can also be brought as a claim of ‘direct detrimental treatment by the employer’ and there is also the possibility of claiming for indirect discrimination if an employer’s refusal to take reasonable steps to prevent the harassment is seen as a ‘discriminatory practice’ under Equality Act 2010 definitions.
Therefore, despite the apparent paring back of Equality Act provisions, and government rhetoric signalling a lack of importance placed on equality measures in the workplace, some protection from third party harassment is still afforded to employees under the Equality Act 2010. But for how long is anyone’s guess.
For more information about the repeal of the third party harassment provisions, please see here and here.
Kate Hollinshead: Director, EqualiTeach: firstname.lastname@example.org