Preparing for the Government’s New/ Revived Third-Party Harassment Law (Likely in 2026)

When Labour’s Employment Rights Bill was announced last year, it went slightly under the radar that they had proposed a change to the harassment provisions whereby employers will be held liable for harassment perpetrated by third-parties like customers. Those with good memories may well remember that a similar duty existed between 2010 and 2013 before it was repealed.

An example of the new law would be where a customer comes to collect their car following a service. When they arrive, the customer subjects one of your employees to unwanted verbal abuse related to the employee’s old age because they think the service was not done quick enough due to his age. In this scenario, the employer will now be liable for the harassment despite the fact it was not said or done by one of their own employees.

Understandably, this has caused a lot of concern amongst employers who are worried they will have to start marshalling or policing customers on a daily basis. Even the best employers will have grumpy customers once in a while, so it is a concern for everyone. However, there are a few key points to note:

• The harassment has to be related to a protected characteristic such as age or sex, meaning just general grumpy customer comments are not going to pass the threshold. A customer saying they thought your employee’s work was “absolutely rubbish” for example would not reach the threshold, even though it might well offend your employee. The Government have specified that “conduct that is trivial or causes minor offence will not be sufficiently serious to meet the definition of harassment.”

• There is a defence against liability, which is that you have taken all reasonable steps to prevent the harassment by third-parties. This is a high bar, but the Government are not totally naïve to the fact that the steps that an employer can reasonably take in respect of the actions of third parties in their workplace are clearly more limited than the steps they can take in respect of their employees.

• Some conduct is simply not able to be anticipated. As such, employers will not be penalised for failing to anticipate the unforeseeable or take other impractical steps. Instead, employers simply need to do what is reasonable. Therefore, employers cannot, and are not expected to, police or control every action of third parties. For example, this clause would not require employers to police all customers’ private conversations.

What Steps Can You Take Now to Prepare?

Somewhat unhelpfully, the Government has not set out what steps will be required to fulfil their new obligation. However, it is widely believed by employment lawyers that conducting a risk assessment will be a basic requirement, which includes assessing the risks presented by third-parties towards your employees and what you can do to reasonably prevent this.

Other reasonable steps might include putting up signage in your workplace where customers are likely to be which state that harassment will not be tolerated and how you will treat customers who do harass e.g. refuse to deal with them. This may not just be in the form of physical signage but also similar wording on email signatures when you communicate with customers or on customer invoices or receipts. 

Other steps might include adding wording to contracts with your third-party suppliers and asking other businesses for details of their sexual harassment risk assessment and prevention measures if staff such as contractors are going to be working on your premises.

Another final reasonable step would be to put in place a procedure for when a concern is raised regarding a customer harassing an employee. In basic terms, this would follow the disciplinary procedure you would use for employees i.e an investigation including interviews and evidence gathering, then a formal outcome to the customer along with steps to support your employee. Managers should be trained in how to investigate and handle complaints of this nature, along with ensuring employees know how to report their concerns.

As per usual with the Employment Rights Bill, the exact date of when this new change will come in is up in the air, but it will almost certainly not be in force until 2026.

As always, this advice is general in nature and will need to be tailored to any one situation. As a MILS member you have access to the MILS Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate