UK: Discrimination - employers should address complaints of third party harassment

Employers should respond to reasonable employee requests to deal with harassment by third parties, even if the Equality Act third party harassment provisions do not apply.

The Equality Act prohibits third party harassment related to the main protected characteristics, where the employer knows of two prior occasions of third party harassment of that employee and it has failed to take reasonably practicable steps to prevent this.

A recent ruling suggests that employers could still be liable for third party harassment even if this test is not satisfied, under the general harassment provisions.

In a case concerning the general harassment prohibition in the Race Relations Act, the EAT ruled that an employer will not be liable for racial harassment simply because of inaction in failing to deal with harassment by a third party, but could be liable where the inaction contributed to causing the hostile environment. Such a case would be rare but might occur where, for example, an employee reasonably asked the employer to take certain action and the failure to do so caused the employee to feel unsupported and helpless to remedy the situation.

Under the Equality Act, the employer's inaction would need to be "related to" the protected characteristic. It remains to be seen whether this test will be easier to satisfy than the previous law requiring the employer's conduct to be "on grounds of" race. The EAT in this case ruled that the inherently racist nature of the third party's actions was not sufficient to establish that the employer's failure to deal with it was "on grounds of" race. (Conteh v Parking Partners, EAT)