Q&As

Can an employer be held liable for acts of sexual harassment, or race discrimination, against one of its employees by a regular customer?

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Published on LexisPSL on 20/05/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Can an employer be held liable for acts of sexual harassment, or race discrimination, against one of its employees by a regular customer?

Can an employer be held liable for acts of sexual harassment, or race discrimination, against one of its employees by a regular customer?

Following the repeal (with effect from 1 October 2013) of explicit Equality Act 2010 (EqA 2010) protection for employees against repetitive harassment by third parties (such as customers and suppliers), an employer now has no explicit liability under the EqA 2010 (as amended) for the harassing actions of third parties.

That does not necessarily mean, however, that the employee has no protection, and the employer no liability, in such circumstances. The question of whether an employer might, in some circumstances, become liable for the harassing actions of a third party was considered in pre-EqA 2010 case law. Treated with caution and having proper regard for the changes in the legislation that have occurred since they were decided, these cases still offer some valuable guidance in this area.

The Court of Appeal in Unite the Union v Nailard confirmed that, where an employer fails to take action following complaints by the employee about a third party's harassing actions, in substance the position post 1 October 2013 remains as it was analysed in Conteh v Parking Partners, namely that an employer will be liable if the proscribed factor (ie the relevant protected characteristic) forms part of the motivation for the employer’s failure to act.

In Conteh (a

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