In 2013, the third party harassment provisions that were previously contained in the Equality Act 2010 were repealed. These provisions made employers liable for the harassment of their employees by third parties, such as customers or clients, where unwanted conduct had taken place on two previous occasions and the employer had failed to take reasonably practicable steps to prevent it.. It was removed as part of the then Government’s red tape challenge in a bid to relieve some of the burden on businesses.
With third party sexual harassment, it was felt unfair to hold employer’s responsible for the actions of others whom they had no control over. Additionally, the provisions were seen as unnecessary and confusing. However, if the Presidents Club scandal at the beginning of the year revealed anything it is that third party sexual harassment is very much a live issue.
The Presidents Club Charity Dinner is a secretive annual fundraiser. Held at the London Dorchester Hotel, this men only, black tie event attracts high fliers from British business, politics and finance. The 130 hostesses hired for the event were told to wear ‘skimpy black outfits with matching underwear and high heels’. At an after-party, many hostesses were groped, sexually harassed and asked to join the diners in bedrooms in the hotel. Upon arrival at the event, hostesses had to sign a five-page non-disclosure agreement about the event which they were not given the chance to read.
Responding to allegations of sexual harassment, following an undercover investigation, both the Dorchester and the Presidents Club denied all knowledge of such conduct but stated that they would investigate. What is particularly disappointing is that the harassment was at the least foreseeable and possibly encouraged.
This anecdotal evidence supports the view that third party sexual harassment is most likely to be experienced by those who are temporary and agency workers. It is also particularly prevalent within the retail, care and hospitality industries. Research carried out by the BBC suggests that up to 18% of respondents had been sexually harassed by clients or customers.
The Women and Equalities Committee has called for the reintroduction of the provisions on third party sexual harassment, with a requirement for only one previous incident. However, in the absence of any legislative changes, employers would still be wise to take allegations of third party sexual harassment seriously. From an employer/employee relationship standpoint, employers should be doing what they can to protect their employees. Where an employer is found to deal with third party sexual harassment particularly badly, they also run the risk of reputational damage if this becomes public knowledge. Finally, there are still some legal options available to employees. In particular, where it can be shown that the employer failed to provide a safe working environment, the employee could claim there was a breach of the implied term of trust and confidence. Subsequently, they could raise a claim for breach of contract or resign and claim for constructive dismissal.
If you have any questions about what your organisation can do to tackle third party sexual harassment, contact your dedicated advisor today. With sexual harassment such a current and hot topic, which is likely to give rise to increased tribunal claims, you can also sign up to our Mock Tribunal event here. Taking place in five different locations, this event will give you an insight into handling sexual harassment allegations, subsequent disciplinary hearings and the tribunal process overall.