Legal update: seeking better protection

What is third-party harassment?

It’s a form of harassment related to a protected characteristic, for example, race, gender or sexual orientation, that is carried out by someone who isn’t employed by your employer but who you come into contact with at work. This could include patients, visitors or suppliers.

Is there legal protection against third-party harassment?

Employees have very limited legal protection if they are harassed at work by a third party. Generally, employers are not liable for the harassment of an employee by a third party unless the employer has failed to take action, and this failure also relates to the employee’s protected characteristic.

This has been the case since the third-party harassment provisions (section 40 of the Equality Act 2010) were repealed in October 2013. The government’s rationale was that section 40 was under-utilised and an unnecessary form of protection.

If you’re harassed at work, and this relates to a protected characteristic, by someone who is also employed by your employer, such as your boss or a colleague, you can sue both your employer and colleague for harassment in the Employment Tribunal. But there is no such liability for third parties, meaning there is a gap in the legal protection available to employees.

What needs to change?

To address the gap that exists, the RCN believes that section 40 of the Equality Act 2010 relating to third-party harassment should be reinstated so that protection is available again. This reintroduction would also give employers a greater incentive to ensure their policies and procedures for dealing with harassment in the workplace are up to date and monitored more robustly.

Why is it so important?

Protection against third-party harassment is important for members in all settings, but it is especially important for those working in high-risk areas or lone workers. They need to be assured their employers will be liable if they are harassed in the course of their employment.

We are currently updating our guidance on harassment generally and progressing the Congress resolution in relation to providing better protection in the workplace against bullying and third-party sexual harassment.

What role do reps have?

Reps are crucial because members who have experienced harassment usually tell a rep first. Reps are likely to be someone they know or trust. Reps should be mindful that the time limit to pursue any related discrimination claims in the Employment Tribunal is three months less one day.

What should members do if they experience harassment?

They should speak to an RCN rep or call RCN Direct on 0345 772 6100 for support and guidance.

Members should always keep a written record of what happened and who was present if it was a single incident, or if the harassment is ongoing, they should keep a diary. They should also speak to their manager.

If they can’t do that, they should speak to their manager’s manager. If informal steps to resolve the issue are unsuccessful members should consider raising a formal grievance in line with their employer’s policy.