Partner Article

Coping without the three strike rule

It’s HR focus week on Bdaily. Here, Chris Davies, professional support lawyer at Gateley, assess the three-strike rule concerning harrassment in the workplace.

Currently, if an employee makes their employer aware that they have been harassed by a client or customer on two occasions, the employer may be liable if there is a further third incident of harassment.

Known as the three-strike rule, the third party harassment provisions in the Equality Act 2010 have always been controversial. However, with the confirmation that these provisions will be repealed on 1 October 2013, are employees now unprotected in the workplace against harassment by outsiders?

The answer is ‘no’ – as we highlight here.

There at least five potential ways in which employees could bring legal action in the future when harassed by non-employees.

The Health and Safety at Work etc Act 1974 states that employers are under a duty to provide a safe working environment, which may include undertaking risk assessments in connection with third party harassment. Failing in that duty could give grounds for a complaint to the Health and Safety Executive, which may then investigate and take action against the employer.

Secondly, it may be possible for the employee to bring a claim in the civil courts for personal injury, on the grounds that the employer is in breach of its duty to take reasonable steps to protect them from injury caused by third party harassment.

The employee also has the option to bring a claim on the grounds that the employer’s failure to take action breaches an implied term of the contract. This would entitle the employee to resign and bring a claim of constructive dismissal against their employer, on the basis that this was a fundamental breach of their employment contract entitling them to treat the contract as at an end.

The general harassment provisions under the Equality Act 2010 could also provide another route for a claim. They could be interpreted as extending to the situation where the employer’s failure to act does ‘violate’ the employee’s dignity or create an ‘an intimidating, hostile, degrading, humiliating or offensive environment’ for them.

Finally, the employee could bring a claim against the harasser directly, under the Protection from Harassment Act 1997. The legislation was originally aimed at stalking, and states that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.

If there are two or more incidents then this may give another means by which the employee may claim compensation.

This was posted in Bdaily's Members' News section by Gateley .