09 Jan 2014

Third Party Harassment Law Repealed

Third Party Harassment Law Repealed

Laura Dunlop, Trainee Solicitor, considers the effect reform to the third party harassment legislation brought in by The Enterprise and Regulatory Reform Act 2013.

Laura Dunlop, Trainee Solicitor, considers the effect reform to the third party harassment legislation brought in by The Enterprise and Regulatory Reform Act 2013.

One of the more controversial provisions of the Equity Act 2010 legislation was that an employer could be vicariously liable for harassment by a third party (such as a client or a contractor) if:

1. that third party had harassed an employee on at least two previous occasions; and

2. the employer had failed to take reasonably practicable steps to stop the harassment.

However, with effect from 1 October 2013, employers will no longer be liable for harassment by a third party as the third party harassment provisions have been repealed.

This means there will be no more liability for third-party harassment and the position is now back to that set out by the House of Lords in Pearce v Mayfield Secondary School v MacDonald (2003).

The case concerned a teacher, Mrs Pearce who was forced to resign from her job after a vicious campaign of anti-lesbian abuse from pupils after she came out. The case predated the implementation of the Human Rights Act 1998, which therefore could not directly assist her in obtaining redress and instead she had to rely on the previous legislation which applied at the time of the case to obtain a remedy.

However, the previous legislation which applied at the time of the case did not cover sexuality discrimination and the law was always meant to cover gender, not sexuality.  The House of Lords conclusively found therefore that the sexual orientation of the applicants was a relevant factor that had to be taken into account in making a like-for-like comparison. For Pearce, therefore, her comparator also had to be a homosexual male, otherwise the comparison would not involve comparing like with like, and it was found that he would have been treated the same.  Moreover, for the school, pupils were not agents, and so the school was not vicariously liable.

Other changes expected in the coming months as a result of The Enterprise and Regulatory Reform Act 2013 include:

  • Health and safety duties.  Changing the liability for breaches of health and safety duties - 1 October 2013.
  • Acas mandatory early conciliation. Claimants to contact Acas before submitting tribunal claim - 6 April 2014.
  • Acas: "relevant proceedings".  Power for government to add to list of claims in which Acas can conciliate - 6 April 2014.

  • Financial penalties for losing employers.  Tribunals to have the power to fine an employer up to £5,000 (payable to the government) if they lose and their case has "aggravating features".  Date TBC.  Cannot apply to claims brought before 25 October 2013 or date section comes force (whichever is later).

  • Discrimination questionnaires.  Abolishing statutory discrimination questionnaires by repealing section 138 of the Equality Act 2010 - 6 April 2014.

Laura Dunlop, Trainee Solicitor


Please correct the errors below before submitting your request:

Get in touch

Our dedicated client contact team prefer to receive enquiries through our contact form. We'll endeavour to get back to you within 24 hours or during the course of the next working day.

Source of enquiry