Question

One of my staff was recently called a 'bin laden lookalike' by a customer which he took great offence to. I am now worried about a claim he may bring. What should I do?

Answer

This is something that does need to be treated seriously as under new laws introduced by the Equality Act ('EqA') 2010 employers can be liable for the harassment of staff by third parties. The EqA 2010 states that an employer will be treated as harassing an employee 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).

What this makes clear is that you need to know about the harassment and it needs to have occurred on at least two occasions although not necessarily by the same third party. Assuming this is the first time this has happened, the employee will not be able to bring a claim. It is also worth bearing in mind that you can escape liability under this part of the EqA 2010 if you have taken reasonably practicable steps to prevent it. Such steps might include:

  • Having a policy on harassment
  • Notifying employees and other third parties that harassment of employees is unlawful and will not be tolerated; for example, by the display of a public notice
  • Including a term in all contracts with third parties, notifying them of your policy on harassment and requiring them to adhere to it
  • Encouraging employees to report any acts of harassment by third parties to enable you to support the employee and take appropriate action
  • Taking action on every complaint of harassment by a third party.

If you would like to know more, please contact Tony Hyams-Parish, Head of Employment, in confidence and without obligation by emailing Tony or by calling him on 08450 990045, or speak to your usual contact in the Employment Team.

This answer is provided for information only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this article.

Read some of our previous Employers Questions here.