Employee should not be subjected to any form of abuse or harassment; whether it is working with fellow colleagues or being in contact with a third party. For example when a person shouts to another violently and aggressively in a negative manner, hence creating an intimidating environment. A third party is a person who does not work for the same company as the employee, so it could be a customer or a client.
The question imposed here is – if an employee is subjected to any abuse by an external client, who is liable? The employer or customer?
The equality act 2010
Historically, The Equality Act 2010 – section 40 (2) – (4) did make employers liable should they have already known about harassments by a third party and did not take any reasonable steps to eliminate it. However, this section was repealed in October 2013. Instead, there are various different routes an employee can make a claim against their employer.
Duty of care
Under the Health and Safety at Work Act 1974 it is the duty of the employer to protect staff physical and mental wellbeing. Harassment and personal injury claims are also covered under this Act. There is also breach of contract claims should the employer, again, fail to protect their staff. Constructive dismissal is another alternative as the implied trust and confidence being broken. Whatever stance the employee takes, it must be clearly justified, with objective evidence and demonstrated how the employer broke their trust.
From a legal prospective, under the Protection from Harassment Act 1997, the employee can make a legal claim direct to the third party by making a civil claim.
In the case of Bessong v Pennine Care (2019), Mr Bessong, a black African mental health nurse was subjected to physical and racial verbal abuse from a patient. The incident was reported to the police, but the employer failed to mention that the abuse was racially motivated. Mr Bessong, aggrieved by the situation, brought a harassment, direct and indirect discrimination claims against his employer.
Employment tribunal
At tribunal Bessong was successful in demonstrating his indirect discrimination claim and he won this element of his case. However, he was unsuccessful in his direct discrimination and harassment claim. The Employment Tribunal concluded though Pennine Care failed to establish a (harassment) reporting procedure, this had nothing to do with race. The employer was therefore not liable for a harassment claim. The outcome to this case may have been different if there had been previous racial incidents which the employer knew about and had not acted upon it.
As a rule, employers must safeguard their businesses and their staff to avoid expensive tribunal claims by enforcing a harassment reporting procedure should any staff experience any wrongdoing from an employee or a third party client. Employers should also demonstrate up to date workplace policies such as dignity in the workplace making references to third party abuse – regular staff training should also be demonstrated through either 1 2 1’s or team briefings.
In a court of law, it is important that the employer is able to demonstrate reasonable steps taken to eliminate any form of harassment within the workplace in order to crush the claim.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028
