Practices should be aware they need to take steps to protect employees from sexual harassment not just from staff but also third parties including patients and suppliers – so that they are not held potentially liable.HR expert George Lepine explains how
Three in five (58%) women – and almost two thirds (62%) of women aged between 25 and 34 – have experienced sexual harassment, bullying or verbal abuse at work, a survey carried out by the Trades Union Congress (TUC) in 2023 showed.
In two out of five (39%) cases of sexual harassment, the perpetrator of the harassment, bullying or verbal abuse was a third party – a patient, a customer, a client or a supplier, as opposed to a fellow employee.
Younger women were found to be particularly at risk. Half of women aged 18 to 34 said they had experienced harassment from a third party at work. While most of this sexual harassment happened in the physical setting, it also happened by phone, text, online, email, on social media or during virtual meetings. Of course, while these statistics focus on sexual harassment against women, men may also be the victims of sexual harassment.
Paul Nowak, general secretary of the TUC, said: ‘Every day we hear stories about the extent of sexual harassment in our workplaces. And we know many women in public-facing jobs – like retail workers and GP receptionists – suffer regular abuse from customers and patients. Sexual harassment and bullying have no place in modern workplaces.’
Where do we currently stand with the law on this?
The Equality Act 2010 included a provision that made employers liable for the sexual harassment of their employees by third parties at work if the employer had known about two previous incidents and failed to take reasonable steps to prevent harassment. This was repealed in 2013 by the then coalition Government.
However, the Worker Protection (Amendment of Equality Act 2010) Act 2023, which took effect in October 2024, introduced an anticipatory duty on employers to take reasonable steps to prevent sexual harassment in the workplace (this means employers must be proactive and not wait for sexual harassment to happen before acting). The Act originally also included a provision making employers liable for third party harassment, but this was removed during its passage through Parliament. The reason this time was the implications for free speech.
So, as things stand, it might be tempting to assume that employers are not at all liable for third party harassment. However, an employer’s failure to act in a case of sexual harassment by a third party could still lead to a complaint and may amount to sexual discrimination against the employee.
The Equality and Human Rights Commission (EHRC) has published guidance that asserts that the Worker Protection Act DOES protect workers from sexual harassment by third parties. However, as the EHRC guidance also recognises, employees cannot bring a standalone claim for sexual harassment by a third party. Enforcement action can only be taken by the EHRC after it receives a complaint from an employee, which it has indicated that it is prepared to do and that does not depend on an incident of sexual harassment having taken place.
Inaction could also amount to both direct and indirect discrimination against an employee.
Measures requiring employers to take ‘all reasonable steps’ to prevent sexual harassment of their employees by third parties, however, are now included in the Employment Rights Bill and are expected to take effect in October 2026. This will make practices liable for the sexual harassment of employees during the course of their employment if they fail to take all reasonable steps to prevent it from third parties.
Powers to enable regulations to specify steps that are to be regarded as ‘reasonable’ are expected to follow in 2027. A complaint of sexual harassment will also become a protected disclosure under the proposed legislation.
How is third-party harassment defined?
First, harassment is unwanted conduct that has the purpose or effect of violating an employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. Unwanted means unwanted by the employee, but does not necessarily mean that the employee has to object. In some cases, it will be obvious that the conduct was unwanted because it clearly violates a person’s dignity.
The words ‘purpose or effect’ are also critical. They mean that harassment will have taken place regardless of whether it is what the perpetrator set out to do. In other words, intention is irrelevant and the idea that someone was just joking around or engaging in banter or ‘laddish behaviour’ (of course, men may also be the victims of sexual harassment) will be no defence. The test that an employment tribunal will apply is whether the conduct in question should reasonably be considered as having the effect that it did having regard to all the circumstances, including in particular the perception of the employee.
For example, a patient who tells a sexist joke while in your waiting room and that is heard by employees and other patients and which leaves them feeling degraded, humiliated or offended may have committed sexual harassment.
Finally, a third party is anyone who is not an employee. So, this could cover patients, suppliers, sales representatives and other visitors to your premises, friends and family of employees, people attending courses or conferences attended by employees and participants in social events which employees attend in the course of their work.
What measures should the practice put in place?
It seems unlikely that the provisions in the Employment Rights Bill will fail for a third time and anyway the real point here is not compliance but providing a workplace in which all employees are safe from sexual harassment by anyone.
Sexual harassment can be devastating for those who suffer it with long term consequences for their mental and physical health and it often goes unreported because people are fearful of the consequences of speaking out.
Everyone has a right to work without fear of sexual harassment and the anxiety and distress that it causes whether perpetrated by fellow workers or by third parties.
Employers should ensure that it can be reported and is dealt with effectively, both to protect staff and the organisation from a legal claim.
Here are some practical steps that you can take:
- If you have an anti-harassment policy make sure that it covers third parties, tells people what amounts to unacceptable behaviour from patients, suppliers, sales representatives and visitors, sets out the steps that you have taken to prevent it, explains how to report third party harassment and encourages people to do so (if you don’t have an anti-harassment policy now is a good time to start writing one).
- Assess the risk of sexual harassment from third parties and consider what steps you could take to mitigate those risks. Previous incidences of sexual harassment by third parties may provide valuable input here. Have in mind that in relation to the Worker Protection Act 2023, the technical guidance from EHRC states that an employer is unlikely to be able to comply with the anticipatory duty created by the Act unless they carry out a risk assessment.
- Your risk assessment should cover activities that employees are required to attend that take place away from your practice. You should ensure that people feel comfortable taking part in such activities and know how to get support if problems arise.
- Engage employees through team meetings, one-to-one meetings, staff surveys and exit interviews. Ensure that they share any experiences which they have had, understand where they see risks and explore their concerns.
- Provide training so that all employees are aware of your policy, what sexual harassment is and know what to do about it if they experience it and no less importantly witness it. Regularly refresh the training.
- Empower people to intervene if they witness sexual harassment by a third party. Consider training people to be active bystanders – people who when they see inappropriate behaviour are willing and able to take action to deal with it. Active bystanders can play a key role in promoting physical and psychological safety in the workplace.
- Make sure that you have an effective reporting system which your employees understand and are encouraged to use. If you are concerned that sexual harassment by third parties may go unreported consider allowing anonymous reporting.
- Tell your patients, suppliers, sales representatives that you have a zero-tolerance approach to sexual harassment by third parties. Your website, posters and leaflets and letters to suppliers should all be used as means of communication.
- When an incident is reported take steps immediately to investigate it and act on the findings of your investigation to resolve the matter. In the case of patients this might lead to their removal from your list. In the case of suppliers this might involve making a complaint to their employer and the replacement of the perpetrator.
- Record the outcomes of investigations and complaints and communicate the outcomes while being careful to ensure compliance with data protection legislation; and
- Regularly review your policy and your records to ensure that things are working effectively and to identify and implement improvements. Learn from experience and don’t regard this as a ‘once and done’ thing.
If you have been working through the implications of the Worker Protection Act 2023, which came into effect last year, then much of this may already be familiar to you in relation to your anticipatory duty towards employees.
If it’s completely new to you then take a look at the information available from the Equality and Human Rights Commission (EHRC): Employer 8-step guide: Preventing sexual harassment at work | EHRC. There is also material available from the NHS: Preventing sexual harassment, misogyny, and sexual misconduct in the workplace | NHS Employers
There is a clear anticipatory duty in relation to sexual harassment by employees which will be explicitly extended to third parties by the Employment Rights Bill. That has taken far too long.
Act now rather than wait for the forthcoming legislation because this is a matter of creating a psychologically and physically safe working environment in which people can thrive and not of compliance with the law.
George Lepine is an independent human resources consultant. Find out more about his work on policy, strategy, organisation development, leadership and team building here
