It has been three years since the Equality Act 2010 came into force and 1 October 2013 will mark the repeal of one of the more controversial provisions of the Act; section 40 relating to third party harassment.

The Act consolidated the vast majority of previous discrimination legislation to provide for a consistent set of rules under a single piece of legislation. It also introduced a new provision that made employers vicariously liable for third party harassment (in respect of all protected characteristics and not just sex discrimination) where they were aware of an employee being harassed by a third party (including a fellow employee) in the course of their employment on at least two occasions (whether or not that third party was the same person on each occasion) and where the employer had failed to take reasonably practicable steps to prevent the harassment on those occasions.

The Government considered sections 40(2) to 40(4) to be unnecessary on the basis that employees are protected by other forms of legislation from third party harassment. The Government has therefore passed secondary legislation for its repeal. This will not affect any third party harassment claims in respect of such harassment that occurs before 1 October 2013.

As the Government has indicated, the removal of the third party harassment provisions from the Act does not remove the employer’s risk of liability to an employee for harassment by third parties, as employees can claim under the general harassment provisions of the Act or under the Protection from Harassment Act 1997. Employers are still at risk if they become aware of any harassment or potential harassment of their employees by third parties and do nothing about it.