From 1 October 2013, the third party harassment provisions contained in Section 40 of the Equality Act 2010 have been repealed.

The provisions made employers liable for harassment of their employees by third parties, such as customers or clients, over whom they do not have any direct control, when harassment had taken place on at least two other occasions and the employer was aware of it but failed to take reasonably practicable steps to prevent it.

Although the majority of responses to a consultation on the issue were against a change, the Government was of the view that the existing provisions were unworkable. Additionally, there was little evidence that there was a significant need for them or that they were effective in practice.

Shaun Underhill, a Solicitor at Winchester firm Shentons warns that employers should still take action if they receive a complaint of third party harassment, however, as there are other avenues open to an employee who is exposed to unwanted conduct and whose employer fails to take reasonable steps to prevent it. For example, a claim might be possible under Section 26 of the Equality Act, which contains general provisions regarding harassment and unwanted conduct. Also, an employer’s failure to act to prevent third party harassment could be regarded as a fundamental breach of the employee’s employment contract, thus entitling them to resign and claim constructive dismissal.