Monday 13 August 2012 by Jonathan Rayner

The Law Society has criticised the 'fundamentally flawed' logic behind government plans to scrap an employer's liability for a third party's harassment of an employee.

The plan, set out in a Government Equalities Office consultation which closed on 7 August, argues that such liability is an 'onerous' burden on business and, along with a raft of other employment red tape, discourages employers from taking on more staff.

The Society responds that the government has 'not detailed or quantified' the burden that the present third party harassment rules impose on employers and also that there is 'no reported evidence that this burden is onerous'.

Current provisions require employers to act when they have been informed of the harassment and when it has happened on at least two previous occasions. The employer is not held responsible for the third party's actions, but is held liable for failing to address them.

The consultation document also argues that the provisions serve no useful purpose because there have been few prosecutions under them.

The Society, in its response, points to 2007 research showing considerable evidence of third party harassment, in particular on the grounds of race and sexual orientation. It argues that the few prosecutions that have taken place since the Equality Act 2010 came into force show that the provisions have a deterrent effect, with employers displaying notices warning customers that harassment will not be tolerated and advising staff on what to do should such harassment occur.

The Society's response adds that alternative ways of raising proceedings against third party harassers, such as claiming under the Protection from Harassment Act 1997, would also place an administrative burden on employers and require appearing before a criminal court, which is more costly than appearing at a tribunal.

'The logic behind the proposal to remove (the provisions) because only a few cases are brought and that it places a regulatory burden on employers is fundamentally flawed,' the response said.

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