Government response to consultation on employer liability for harassment

In October 2012, the Government published its response to the consultation on employer liability for harassment of employees by third parties.

The response confirms the Government’s intention to repeal the measure.

The Executive summary states (p4):

Of the 80 responses to this consultation, 16 (20%) agreed our proposal for repeal and 57 (71%) opposed it. Responses which agreed with the proposals came mostly from individual public, private and not-for profit sector employers and business organisations, although two individuals responded on their own behalf.

All business representative organisations supported repeal. Responses which disagreed with our proposal were mainly on behalf of public sector employers, unions and equality lobby groups. The small number of responses from legal organisations and bodies with legal expertise discussed legal arguments about the compatibility of our proposal with compliance with the relevant European Directives, and the extent to which the possible alternative avenues of legal redress might apply. Some legal respondents had represented either employees or employers in situations where accusations of harassment by a third party had been made. Invariably however, these were either settled without reaching an employment tribunal, or withdrawn.

Very few of the responses, whether from those opposed to or those in favour of repeal, offered quantifiable evidence or specific evidence based on actual situations and outcomes to support their views. It is clear that the legislation in its existing form is widely considered unsatisfactory, both by those favouring repeal (who want it to be scrapped) and those opposing repeal (who would like it to be strengthened and clarified). Several responses misunderstood the concept of third party harassment, and a larger number misunderstood its intention, which is to make the employer liable in specific situations, and not as a general way of encouraging employers to treat their employees better.

Taken as a whole, this response has not persuaded the Government that there is a need to re-think the proposals on which it consulted in May.

The changes will be made through amendments to the Enterprise and Regulatory Reform Bill.

Click here for ‘Equality Act 2010: Employer liability for harassment of employees by third parties Government response to the consultation’ (pdf)

Click here for TUC press release on 10 October 2012

Click here for EDF response to the consultation (submitted in August 2012)

Please also see EDF briefing on the Enterprise and Regulatory Reform Bill.