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18 September 2013

Repeal of third party harassment provisions

The repeal of the third party harassment provisions under the Equality Act 2010 took effect from 1 October 2013.

The Enterprise and Regulatory Reform Act 2013 included a provision to allow the repeal of the third party harassment provisions under the Equality Act 2010 (sections 40(2) to (4)).  The Government has now published the secondary legislation necessary to implement the repeal of these provisions, which takes effect from 1 October 2013.

The third party harassment provisions allowed an employee to pursue a complaint under the Equality Act against his or her employer, if the employer failed to take steps to prevent the repeated harassment of the employee by a third party (such as a customer).

The Government consulted on the repeal of this protection on the basis that it was an example of unnecessary regulation introduced without any real or perceived need, and that there are alternative legal routes that employees can pursue if they considered that they have been subjected to repeated harassment by a third party. This would include a claim under the general harassment provisions of the Equality Act, a claim for constructive unfair dismissal, a negligence claim and/or a claim under the Protection from Harassment Act 1997.

The third party harassment provisions were never fully tested by the courts, so it is impossible to judge their effectiveness.  Whilst their repeal provides the Government with a tangible example of the measures it is taking to reduce the regulatory burden on business, it is unlikely to have a significant impact on employers in practice.

The Enterprise and Regulatory Reform Act 2013 also includes provision for the repeal of the discrimination questionnaire procedure under the Equality Act 2010.  This is likely to take effect in April 2014, to be replaced by a non-legislative approach set out in new Acas guidance.  We will report further on these changes once details are available.