13th May 2022

Three course dinner followed by some third-party harassment? Does the law adequately protect against harassment by third parties?

After-dinner speakers.  You either love them or hate them.  That’s my view, anyway.  I’ve seen a few after dinner speakers.  Some of them have had me in stitches (not that hard), while others have left me needing another drink sharpish. 

The after-dinner speaker at the recent Scottish Football Writers’ Association (“SFWA”) event has faced some backlash in the press and on social media.   Former lawyer, Mr Copland was addressing the guests in the name of after dinner entertainment.  However, some of his remarks prompted a walkout from a number of guests, including well known TV presenter, Eilidh Barbour.   Ms Barbour tweeted that she “never felt so unwelcome in the industry I work in” than she did at the ceremony.   Others complained that Mr Copland’s jokes were “sexist, racist and homophobic”.

It will not be news to most of us, that jokes which are sexist, racist or homophobic could well breach the Equality Act 2010.  After all, sex, race and sexual orientation are three of the nine characteristics which are protected by law against discrimination.  We also know that harassment is a very wide concept covering unwanted conduct, related to a protected characteristic, which has the purpose or effect of creating an intimidating, hostile, humiliating, offensive, or degrading environment for the person who receives the treatment.  Note that this can also extend to comments made generally, but not specifically directed at any particular person.

Mr Copland was not a member of the SFWA.  However, he was a third party speaking at one of their events.  According to the reports, he made unwanted comments related to sex, race and sexual orientation, and these comments had the effect of creating an intimidating, offensive or humiliating environment for some (evidenced by the fact that they walked out).   Could this give rise to a claim of third-party harassment?  What if some of the employees at the venue hosting were also offended?

The law in this area has changed over the year. The first occasion when the law provided protection against harassment by third parties arose in similar circumstances to the SFWA dinner and followed on from Bernard Manning telling racist and sexist jokes which were offensive to waiting staff at the hotel he was speaking at. In the early days of the Equality Act, harassment by third parties was expressly prohibited.  An employer could be liable where: (i) it failed to take reasonably practicable steps to protect its staff from harassment by third parties; and (ii) it knew that the employee in question had been harassed by a third party, during the course of their employment, on at least two prior occasions (note that it didn’t have to be the same third party on each of these two occasions).  This was often referred to as the three strikes rule.  However, these parts of the Act were repealed in 2013.

A series of cases have been heard on the issue of third-party harassment since the repeal of the statutory protection.  The upshot is that it will be difficult for such a claim to succeed.  One senior judge commented that it was now a matter for Parliament to address. In 2018 both the Equalities and Human Rights Commission (EHRC) and the Women and Equalities Select Committee made recommendations as to ways in which the law on sexual harassment could be strengthened to offer greater protection. This led to a government consultation taking place.  On 21 July 2021, the government published its response to the consultation on sexual harassment in the workplace and the recommendations made included introducing a duty for employers to prevent third-party harassment in the workplace when parliamentary time allows. This duty will also have a defence that the employer has taken “all reasonable steps” to prevent the harassment.

While there is no fixed timeframe fixed for the introduction of this measure, notwithstanding all of the above, employers would be well advised to take all reasonably practicable steps to safeguard their staff from acts of harassment by third parties.  We all deserve to work in an environment which is free from harassment. 

If you require advice about any of the issues highlighted here, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Jack Boyle, Director
Accredited by the Law Society of Scotland as a Specialist in Employment Law
Blackadders LLP
@EmpLawyerJack
www.blackadders.co.uk 

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