29 Sep 2013
3-Strikes - it's out!
In 1996, De Vere hotels were held liable for the offence caused to 2 black waitresses by a third party performer's sexist and racist jokes at a hotel function.
The Equality Act 2010's '3-strikes' rule expressly outlawed such 'third party harassment': employers were liable if they knew that, in the course of employment, employees had been harassed by a third party on at least 2 other occasions but the employer failed to take steps to prevent it.
From 1 October 2013, the '3-strikes' rule will disappear.
So, one less thing for employers to worry about? Not quite.
Not only is it best practice to try to protect employees from harassment, employers remain on the hook for several potential claims from employees suffering third party harassment:
* Breach of contract/constructive unfair dismissal (if the employer's failure to prevent it breaches trust and confidence);
* Personal injury claims based on negligence or breach of statutory duty (such as providing safe places of work under Health and Safety laws);
* Harassment, if the employer's failure to prevent third party harassment itself amounts to unwanted conduct violating employees' dignity at work, creating a hostile, offensive etc environment;
* Direct discrimination if, because of sex, race etc, employees are put in a position by the employer where they suffer the 'detriment' of third party harassment; and
* Indirect discrimination if the failure to take steps to prevent third party harassment is itself a discriminatory practice in relation to sex, race etc.
What to do?
* Have in place, implement and police effective policies and procedures.
* Pay particular attention to third parties working at your premises/your employees working off-site at clients' premises etc.
* Deal with complaints promptly and effectively.
* If in doubt, talk to us.