Employers' Legal Liability for Sexual Harassment of Employees by Third Parties

Abstract

The issue of whether or not an employer should be vicariously liable under statute for sexual harassment perpetrated against his employees by third parties is an important one that has been undecided until recently. Whether the issue has been decided by the legislative rules now covering it remains to be seen. Some commentators, including this writer, would disagree that the matter has been resolved sufficiently and argue the need for further change.

‘Thus an employer is not liable for third party harassment of which they had no knowledge, or for one off incidents of third-party harassment, or for conduct beyond their control.’1

This article will briefly outline the chequered history of this area of law and analyse how recent changes in UK law2 (which were inspired by a EU Directive and a successful challenge to the legal rules in the UK raised by the Equal Opportunities Commission (EOC) in Equal Opportunities Commission v. Secretary of State for Trade and Industry)3 and implemented by the Sex Discrimination Act 1975 (Amendment) Regulations have finally tried to resolve the issue.

The legal effect of these changes will be considered as will their practical impact on employers in the UK. The deficiencies in the legislative rules which now apply will also be highlighted. Developments in other relevant areas of harassment law will also be considered.