If a third party harasses an employee, will the employer be liable for the third party's actions under the Equality Act 2010?

An employer will not currently be liable under the Equality Act 2010 for harassment of its employees by a third party (for example, a client or supplier).

A positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment applies from 26 October 2024. This includes prevention of sexual harassment by third parties. While an employee cannot bring a standalone claim in relation to third-party harassment, and the employer will not be directly liable, the Equality and Human Rights Commission will be able to take enforcement action against the employer in relation to the new duty. 

The Employment Rights Bill, published on 10 October 2024, includes provisions to introduce employer liability for harassment of employees by third parties, where the employer has failed to take all reasonable steps to prevent the harassment. It is not yet known when this will come into effect.

As the law currently stands, if an employer fails to take action in response to complaints about a third party, the employer itself could be found to have harassed the employee if the failure to act was because of a protected characteristic. For example, trivialising a female employee's complaints about third-party sexual harassment and taking no action to prevent it could in itself amount to harassment.

Employees who have been subjected to harassment by a third party may be able to bring a constructive dismissal claim against their employer, if they resign and claim that the employer's failure to protect them amounts to a breach of contract. An employer could also be liable for negligence if the employee suffered mental and/or physical injury because of harassment by a third party that the employer could reasonably have foreseen and prevented or reduced. 

Employers should ensure that they continue to take all reasonably practicable steps to prevent any harassment of employees.