Employers Must Prevent Third Party Harassment

Understanding Third Party Harassment

The recent update to the Equality and Human Rights Commission (EHRC)’s technical guidance on sexual harassment makes clear that the new duty on employers to prevent sexual harassment includes preventing harassment by a third party harassment. Sexual harassment by customers, visitors, service users and other non-employees remains one of the most common challenges in the workplace.

In the 1990s, the “Bernard Manning case” established employer responsibility for third party misconduct. While that principle was later overturned and legislative provisions modified, the updated guidance reinstates the requirement for employers to take reasonable steps to prevent harassment by non-employees.

The New Duty to Prevent Sexual Harassment

Under the Worker Protection (Amendment of Equality Act 2010) Act 2023, the final duty focuses on preventing sexual harassment at work. Although employees cannot bring an employment tribunal claim solely for breach of this duty, the EHRC may:

• Conduct investigations or public sector duty assessments
• Issue unlawful act notices, injunctions or compliance notices
• Pursue unlimited fines through the courts

With the EHRC’s upcoming strategic plan targeting sex discrimination, harassment and victimisation, organisations should expect enforcement action if they fail to address third party harassment.

Recommended Steps for Employers

Employers must not be lulled into a false sense of security. To mitigate risk and demonstrate compliance, organisations should:

• Develop and maintain an anti-harassment policy that explicitly covers third party interactions.
• Perform regular risk assessments to identify where sexual harassment may occur, including external stakeholder interactions.
• Provide ongoing training for all employees on recognizing and reporting harassment by colleagues and third parties.
• Ensure clear reporting channels and prompt investigation procedures.

For practical guidance, review the EHRC’s current technical guide here (PDF).