The Employment Rights Act 2025 will expressly allow EqA claims against an employer who permits harassment by third parties such as customers. This is expected to take effect in October 2026.
New protection in the 2025 Act
It is often difficult to claim against one’s employer for harassment by someone other than a manager or one’s work colleagues: Harassment of employees>Harassment by third parties, such as customers or suppliers. Provisions in s.40 Equality Act (EqA) allowing such claims were repealed in 2013 (below).
S.21 Employment Rights Act 2025 will (when in force, below) amend s.40 EqA to say that an employer (A) must not “permit” a third party to harass a person (B) who is one of its employees. “Third party” means a person other than the employer or one of its employees. It will include a customer, client, contractor or supplier for example (including patients as regards hospital staff, and students as regards school, college or university staff). “Employee” as defined in the EqA includes a worker.
Sub-section (1B) will say that the employer permits a third party to harass B only if
- the third party harasses B in the course of B’s employment by A, and
- A failed to take all reasonable steps to prevent the third party from doing so.
In House of Commons committee debates on the Bill, a government minister said:
What constitutes “all reasonable steps” for third-party harassment will depend on the specific circumstances of the employer. Employers will need to consider the nature of any contact with third parties – for example, the type of third party, the frequency and the environment. In certain sectors, there may be more regular worker interaction with third-party contractors than in others.
Dame Nia Griffith, Minister for Equalities, Hansard Tue 10th Dec 2024.
As well as the employer’s liability being limited by the steps having to be “reasonable”, on which tribunals could take a common sense approach, it will be limited by the reasonableness test built into the definition of harassment itself (Harassment of employees>Subjective perceptions).
A wrinkle of the new legislation is that the harassment will need to be in the course of the victim’s employment with the employer (s.40(1B)(a)). This makes sense, but contrasts with the test for whether the employer is liable for harassment etc by its own employee under s.109(1) EqA, namely whether the harassment is in the course of the perpetrator’s employment.
“Permit”
These changes to s.40 EqA are welcome for claimants. However, I think one question will be whether “permitting” harassment can require something more than meeting the two requirements in sub-section (1B), and if so what. The provision does not say “if and only if”; contrast the definition of “Crown act” in s.205(4). Also the provision could have been drafted without the word “permit”, with a structure similar to the old s.40(2) EqA (before amended in 2013). So maybe sub-section (1B) limits the meaning of “permit” without exhaustively defining it. If “permit” does add something beyond the two (1B) conditions, courts will need to clarify what “permits” means in this context.
Example: An employer has not taken all reasonable steps to prevent harassment by the third party generally, but was unaware of them having harassed anyone. Harassment of the claimant by the third party has continued for some months without the claimant telling the employer about it. If the employer had been told, the employer could easily have stopped the harassment much earlier. Is the employer taken to have “permitted” all that harassment?
The general view of commentators seems to be that the word “permit” does not add anything beyond the conditions in sub-section (1B).
When will it come into force?
The government has said that this new “obligation on employers not to permit the harassment of their employees by third parties” will take effect in October 2026: Plan to Make Work Pay and Employment Rights Act: timeline update (gov.uk), Feb 2026.
Letter from the government
On 25th April 2025 the government wrote (pdf) to the chair of the (parliamentary) Joint Committee on Human Rights, in response to the committee’s letter (pdf) of 8th April. Points in the government’s letter include:
- The government believes it is not necessary to include a specific exception for overheard opinions, eg bar staff overhearing conversations in pubs on political, moral, religious or social matters. It believes that the new clause already protects freedom of expression and ensures that impractical burdens aren’t placed on employers. (See too comments of Dame Nia Griffith, Minister for Equalities, in committee: Hansard Tue 10th Dec 2024, 10:30am.)
- The committee asked why the clause (now s.21) does not adopt the three-strikes rule used in the pre-2013 provisions (below).
- The government says a one-off incident is much less likely to create the proscribed environment in order to amount to harassment, as compared to continuing acts. It says tribunals already take such factors into account.
- Also, up to 2013, the three-strike rule was criticised for being confusing, and because it was seen to result in cases becoming unduly focused on establishing whether an employer was made aware of the previous cases of harassment. The government said it was aware of only two cases brought under the three-strike rule, suggesting the rule was a significant barrier to redress. The new clause will make it simpler for employers to understand their obligation and remove barriers to redress for employees.
Pre-2013 provisions
In rejecting a proposed amendment to the Employment Rights Bill at committee stage, that would have excluded liability for smaller businesses, the government minister Justin Madders pointed out:
… third-party harassment was actually unlawful for the five years between 2008 and 2013, and I am certainly not aware of businesses claiming that that was an undue burden. That was repealed in 2013 because, at the time, it was considered that there were broader protections available regarding third-party harassment. However, that interpretation was challenged in the Nailard judgment in 2018, which found that employees were not in fact protected against third-party harassment. One of the intentions behind the Bill is to close that gap. We think it is absolutely fundamental that, if someone is being harassed at work, it should not matter how big their employer is. Harassment is unacceptable in all its forms, whoever someone works for and however big their employer is, and we intend to close that gap.
Hansard, 3 Dec 2024, just before 10:30am
Before its repeal on 1st October 2013, the “three-strikes” provision in EqA s.40(2)-(4) could make an employer liable for harassment by a third party: see s.40 as originally enacted. An employer (A) was liable if:
- a third party harassed one of A’s employees (B) in the course of B’s employment, and
- A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so, and
- A knew that B had been harassed in the course of B’s employment on at least two other occasions by a third party. It could be a different third party each time.
So under the original s.40 EqA, two previous harassment incidents by third parties were needed, of which the employer was aware. This will not be a requirement under s.21 Employment Rights Act 2025. However, those factors will presumably be relevant to what steps it was “reasonable” for an employer to take in the circumstances. See too on this the government’s letter (above) of July 2025. Also, as was pointed out in the committee debate on whether smaller employers should be exempt, size and resources of the employer will be relevant in deciding what is reasonable.
When Parliament repealed the original s.40(2)-(4), Ministers assured Parliament that there could still be protection by way of a harassment claim if an employer knew that a customer had repeatedly harassed an employee but failed to take reasonable steps to prevent it. However, the Court of Appeal held otherwise in Unite the Union v Nailard.
From 2008 to 2010, similar provisions on third-party harassment had applied to sex discrimination: s.6(2)-6(2D) Sex Discrimination Act 1975. From 2010, the EqA extended the protection to disability and most other protected characteristics.
Links
- Employment Rights Bill unpacked tougher stance on workplace harassment (lewissilkin.com), November 2024
- Are pubs about to ban people from talking about ‘transgender rights’? (rangeofreasonableresponses.com), 14 Jan 2025. (See now on this the government’s letter (above) of July 2025.)
