Third party harassment must relate to a protected characteristic

Clarkslegal LLP was instructed to act on one of the first employment tribunal cases concerning third party harassment.  In this case, Clarkslegal represented the employer in a case where the employer’s ex-employee made a claim for third party harassment.

The controversial third party harassment laws can see employers liable for acts of harassment committed by third parties where:

• A third party harasses the employee in the course of the employee`s employment;
• The employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so; and
• The employer knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (whether or not the third party was the same person on each occasion).

The employee in this case alleged that third parties, including homeless people and youths loitering outside her workplace, had repeatedly sworn at her calling her b*tch, c**t and b*st*rd and this was third party harassment. 

The tribunal judge confirmed in his judgment that acts of third party harassment must relate to a protected characteristic i.e. age, disability, race, religion or belief and sex.  Although the judge decided that the Claimant’s allegations of harassment were not proven, he held that even if the alleged acts of harassment were true, they did not relate to her sex because although some of the swear words were directed at the employee as a female, other swear words allegedly shouted at her could have offended and been aimed at both men and women.  The judge dismissed the employee’s claims accordingly.

This is one of the first cases on third party harassment and provides useful guidance for employers who will not be liable for acts of third party harassment unless it specifically relates to a protected characteristic.  The government is still consulting on whether to remove third party harassment laws after describing them as unworkable.