A significant change introduced in the Employment Rights Bill is the establishment of employer liability for third party harassment of employees during the course of their employment. This provision will extend protection to employees who may be harassed by individuals who do not work for, and are not agents of, their employer, such as clients, contractors and members of the public.
This proposed extension of liability has prompted concerns that it may infringe human rights, in particular the right to freedom of expression. As such, the Chair of the Joint Committee on Human Rights (JCHR) wrote to the Secretary of State for Business and Trade in early April. In his open letter, he asked whether sufficient safeguards had been put in place to protect freedom of expression under Article 10 of the European Convention on Human Rights.
The Department for Business and Trade and the Office for Equality and Opportunity responded on 25 April 2025, providing clarification, as follows:
1. Why is there no carve-out for ‘overheard opinions’?
The Government confirmed that it does not consider carve-outs for overheard opinions (i.e. where harassment involved a conversation in which the employee was not a participant) to be necessary. It maintains that the provision on third party harassment already protects freedom of expression and ensures impractical burdens are not placed on employers.
The government also clarified the following:
- Employers are only required to do what is reasonable in their specific circumstances and are not expected to be able to stop all harassment from ever occurring to their employees.
- The steps an employer can take in relation to third parties will be more limited than in respect of their employees and the Tribunal will take this into account when assessing facts of the case.
- Employers will not be held liable for failing to take steps that are unworkable or impractical.
2. Why is there not a ‘three strikes rule’?
The JCHR questioned the absence of a ‘three strikes rule’, where employers would only be liable if they had known of the harassment occurring on at least two previous occasions by a third party and had failed to take reasonable steps.
The Government responded that a one-off incident is less likely to constitute harassment, as compared to continuing acts, making such a rule unnecessary.
3. Why has the interaction between the preventative duty on sexual harassment and third-party harassment not been addressed?
In October 2024, new legislation came into force requiring employers to take “reasonable steps” to prevent sexual harassment of their employees. The Employment Rights Bill proposes a tougher obligation requiring employers to take “all reasonable steps” to prevent sexual harassment.
The Government clarified that this preventative duty would apply to third party sexual harassment in the same way as it applies to employee-on-employee sexual harassment in the Equality Act 2010. An employee will be able to bring a claim against their employer for third party harassment, and if successful, the Employment Tribunal will then consider whether the preventative duty has been breached.
If you require assistance in relation to the Employment Rights Bill or require any help updating your policies, please contact a member of our team: employment@wslaw.co.uk