Liability for Third Party Harassment

There has been a long running debate in employment law as to whether, and if so in what circumstances, an employer can be held liable to its employees for the discriminatory acts of third parties.

The Equality Act 2010 made employers liable for any incident of third party harassment where the employer knew that that the employee had been harassed by that third party on at least two prior occasions. Essentially, it was a three strikes and out approach to third party harassment. That provision was repealed in 2013 and since that date there has been no statutory provision under which employers can be held to be liable to their employees for harassment by a third party. There are however limits to that general principle.

In the case of Bessong v Pennine Care UKEAT/0247/18 a mental health nurse was assaulted and racially abused by a patient. The employer was not held to be liable for third party harassment per se, but it was liable for failing to ensure incidents of racial abuse were reported which was said to amount to indirect discrimination. The EAT also took the view that, while current legislation does not render employers liable to employees for third party harassment, it would be unlawful if it could be shown that an employer’s failure to act to prevent harassment was related to the employee’s race.

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