This sounds like it could (among other things) constitute a case of “third party harassment” under section 40 of the Equality Act 2010. We’ll therefore take a look at the following elements:

  1. What is third party harassment?
  2. What should I do if I’m being harassed?
  3. What are the repercussions for me should I complain?
  4. What other complaints might I have?

What is third party harassment?

The definition of “third party harassment” under s.40 of the Equality Act 2010 is:

(1) An employer (A) must not, in relation to employment by A, harass a person (B)—

               (a) who is an employee of A’s;

               (b) who has applied to A for employment.

(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where—

               (a) a third party harasses B in the course of B’s employment, and

              (b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so

 (3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B’s employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.

(4) A third party is a person other than—

                 (a) A, or

                (b) An employee of A’s.

Third party harassment will be referred to in this article as “indirect” harassment. Under s.40, then, employers are prohibited from “indirectly” harassing employees or applicants for employment. That is, they must not let third parties harass employees or applicants for employment. An employee is someone who works for your employer whereas an applicant is, clearly, someone who has applied for employment. A third party is anyone who is not an employee of your employer or the employer themselves. This can include clients, customers, contractors or simply persons passing through the office on their way somewhere else.

There are a variety of types of “harassment” under the Equality Act 2010. The harassment could be sexual in nature or it could refer to unwanted conduct related to a protected characteristic of yours or another employee’s (for example, your gender or another employee’s colour). Sexual harassment, for example, may take the form of overt or covert sexual remarks to you at work (such as remarks on your bra size or requests for sexual favours etc.). Unwanted conduct harassment takes places when unwanted conduct occurs which is related to a relevant protected characteristic (of yours or, for example, another employee’s) which has the purpose or effect of creating an intimidating, hostile, humiliating, offensive or degrading environment for you at work or of violating your dignity. For example, derogatory comments about women in the office may constitute unwanted conduct harassment if you’re offended by them (even if there are no women in the workplace or none present). However, it’s important to note that although sexual harassment and unwanted conduct harassment can and often do overlap, they are also often distinguished from each other.

A further point to note is that the harassment doesn’t simply have to take place in the workplace or strictly “on the job” – it could, for example, take place at a work-organised Christmas party. “In the course of employment” is a wider definition than “in the workplace”.

An important point to make is that your employer will not be liable for the third party harassment if they are not aware of at least two incidents of harassment. Two points therefore stem from this: firstly, there must have been at least two incidents of harassment for you to have a viable claim under s.40 and, secondly, your employer must have been made aware of at least two incidents. (N.B. the incidents don’t have to be by the same person). Your employer may have witnessed the incidents or may have been told of the incidents by other employees. However, you should make sure that you make your employer aware in writing (preferably by email) of the date of the incidents, the nature of the incidents, and who harassed you. Should you fail to do this the odds are that your employer will deny all knowledge of the incidents of harassment, which may cause problems for you.

Further, your employer will escape from liability if it wouldn’t have been reasonably practicable to take any steps to stop the harassment or if they took steps to stop the harassment but were unable to stop it. The important element here is that of “reasonable practicability”.

What should I do if I’m being harassed?

You should diarise all incidents of harassment, including:

  • Who harassed you
  • What took place
  • When they harassed you; and
  • Who else witnessed the incident

Take a statement, if possible, from any other employees (or third parties) who witnessed the harassment. This may sometimes be difficult to obtain as employees are often wary of putting themselves in the middle of such a matter.

Ask the person who is harassing you to stop doing so. This can help prevent another incident occurring.

Inform your line manager of what’s happening, preferably by email. Give them the details of who harassed you, what took place, when they harassed you, and who else witnessed the incident. Make your line manager aware after the first incident of harassment of the potential legal implications should another incident take place. This will often incentivize them to take action against the third party.

If possible, ask your line manager to transfer you away from the task or project that involves interacting with this third party.

What are the repercussions for me should I complain?

In a perfect world there would not be but sometimes employees are sometimes victimised if they raise issues such as this in the workplace. Employers are often reluctant to take action against third parties, especially if they are important clients. You should think carefully about what your options are in such situations and judge your response accordingly. However, don’t fail to inform your line manager of the incidents of harassment – if you fail to do so then you’re cutting off potential options at a later date (such as the ability to issue a complaint in the Employment Tribunal). Should your employer subject you to a detriment because you have informed them of the incidents of harassment you may have substantive complaints of direct discrimination and/or victimisation under the Equality Act 2010.

What other complaints might I have?

If your employer fails to take steps which would have been reasonably practical to stop the harassment then you may have a claim for direct discrimination against them, depending on the circumstances.

Further, if you’re subjected to a detriment (such as, for example, transfer or dismissal) then you may have complaints of direct discrimination and victimisation.

If you develop stress or depression because of the continuing harassment, you may have a claim for personal injury (negligence) against your employer.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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