The Government has announced that the third party harassment provisions in the Equality Act 2010 are to be repealed, effective from 1 October 2013.  With that repeal we will see an end to what many commentators agree has been a particularly badly drafted piece of legislation.  The question is whether this will be a step backwards in terms of reasonable employee protection from harassment and discrimination, or alternatively, whether those provisions were a bridge too far from the very start.  

The law was controversial from the outset.  In particular, this was because it included what became known as a “three strike” rule.  This stated that an employer would be liable for a third incident of third party harassment of its employees where the employer “knew” about two previous occasions on which it had occurred.  The press coverage at the time focused on the unreasonableness of the “automatic” liability which it perceived was being imposed on employers.   

The law was also badly drafted, leading to scope for extensive litigation as to what it meant for an employer to “know” about an act of harassment.  Is this because an employee has complained about it or because the employer has witnessed the act? Can an employer say it did not know the act had happened if that was its conclusion following an investigation into the matter?  

What the law’s detractors frequently neglected to mention was that the three strike rule was caveated by liability only arising if, given that awareness of the problem, the employer also failed to take reasonably practicable steps to prevent the harassment.  The contention of automatic liability for employers was therefore misplaced, if not the concerns about drafting and clarity.  What those “reasonably practicable” steps would have required was also unclear.  Extensive case law has developed around that concept as it relates to the treatment of one employee by another (training, issue and enforcement, of equality policies, etc) but it is far from obvious how an employer could apply it to third parties.  

The legislation has only been in place for two years.  As you would imagine, in such a short period there has not been any significant case law or commentary to indicate how effective the law has been though the perception is that the Government realised that those provisions would be more trouble than they were worth, that some “brownie points” could be earned by scrapping them and, in particular, that (so far as we know) no one was actually using them anyway.  

Ironically, the three strike rule, which was designed to give reassurances to employers as to when liability would arise, only caused confusion and controversy, misinterpretation as to when liability would arise and the risk of satellite litigation on the extent of an employer’s knowledge.  In all this mess the genuinely sensible question as to why an employer should not be liable if there was something it could reasonably have done to prevent its employees from suffering harassment was completely lost.  

Rather than amend the legislation, the current Government’s focus on reducing employment rights (part of the “red tape challenge” frequently commented on in this blog) has meant the third party harassment law was repealed in its entirety.  The legal position will therefore return to what it was before the Equality Act 2010, with an employer only being liable for third party harassment where its failure to intervene was a result of its own discrimination.  This seems unsatisfactory on those cases where employers are in a position to take reasonable steps to prevent such conduct and fail to do so.  It is perhaps a shame that a mixture of bad drafting and lack of foresight have resulted in an excuse to take a step backwards in terms of employee protection.  However, if the choice is limited to either keeping this particularly bad piece of drafting, with all its associated lack of clarity, or returning to the pre-Equality Act status quo, then these provisions are unlikely to be missed.