Third party harassment – could you be liable?

The media have recently reported on a tribunal case involving a member of staff at a public boarding school in Kent who resigned from her role citing discriminatory treatment and alleged verbal abuse from pupils. This case is a useful reminder and highlights the importance for FE Colleges to take action against any allegation of harassment against its employees, not only where the allegations are against other employees but also by third parties, such as students.

The media reports refer to a successful tribunal claim brought by a lab technician who alleged that she overheard comments made against her by students, such as “women shouldn’t be in science, they should stay at home in the kitchen” and further that she was spoken to in an aggressive manner by students, subjected to profanities, was tripped up and had doors slammed in her face by students at the school. It is reported that she was subjected to treatment which she asserted that she had not seen her male counterparts subjected to. Having raised complaints about this treatment and other issues, it is further reported that the employee concerned believed her grievances had “not been acted on appropriately or at all”.

Most employers are aware that they may be held vicariously liable for unwanted treatment meted out by employees to their colleagues. FE colleges may also recall that the Equality Act 2010 initially expressly included provisions which could render employers liable for third party harassment of its employees in certain circumstances (such as harassment of staff by students). This liability could arise where a third party harassed an employee in the course of their employment, and the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so, subject to the employer also having knowledge of the employee being harassed by a third party (but not necessarily by the same third party) in the course of their employment on at least two other occasions. However, these rules were repealed on 1 October 2013. Notwithstanding this an employer can still be liable for the actions of third parties against its employees if a tribunal decides that the definition of harassment under section 26 of the Equality Act 2010 has been satisfied. In this regard, the employer will be liable where the employee can assert that the employer’s failure to deal with third party harassment is in itself unwanted conduct related to a protected characteristic that violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them. Further, inaction by an employer in the face of harassment of its employees by third parties may give rise to resignations of the staff concerned and potential liability for constructive unfair dismissal claims.

Accordingly, an FE college that receives complaints from a member of staff alleging harassment by students or other third parties such as parents or suppliers, would be prudent not simply to dismiss this as something outside of its control but to investigate and if allegations are well founded take appropriate action accordingly. As a minimum, FE colleges would be best advised to seek legal advice on the potential risks of inaction and the consequences of the same.

Charlotte Sloan, Employment partner in Thomas Eggar’s Personal Wealth team, Thomas Eggar LLP