Workplace harassment: Who is liable?
Harassment and discrimination at work can have significant health and work consequences for the victim and the wider workforce. Legislation is aimed at protecting employees against discrimination at work, one form of which is harassment - unwanted behaviour creating an intimidating, unwanted or degrading environment relating to a protected characteristic.
Can discrimination and harassment at work be considered an occupational hazard? How can employers control for it, and if harassment does happen at work, who is liable?
Who is the perpetrator?
In situations where the employer is acting in a discriminatory way, they are likely to be liable for damages
In a scenario where one employee behaves in a discriminatory way towards another, the employer may have vicarious liability for this behaviour and associated damages, but this is less clear cut. Where employers have taken reasonable steps to prevent harassment between employees (such as implementing mandatory training and anti discrimination/ anti harassment policies) for their workforce, they can use this as defence against vicarious liability at tribunals.
In an estimated 15-30% of cases of workplace harassment, the perpetrator is actually a third party, such as a customer of the company or a contractor. In these scenarios, an employer’s liability is even less clear cut. There were third party harassment provisions of the Equality Act 2010 but these were repealed in 2013. If a worker is harassed by a customer at work, they cannot claim against their employer. Legal frameworks outside employment law are of course relevant here but operate without consideration of occupational risk of discrimination, harassment and assault. Arguably, third party harassment is more likely in some workplaces than others, and employers should be aware of the risks and take steps to prevent it.
The Worker Protection (Amendment of Equality Act 2010) Bill is making its way through parliament. If it is passed, the third party harassment provisions of the Equality Act 2010 will be reinstated, and employers will be expected to to take reasonable steps against third party harassment.