Employees and applicants: harassment
Part 5 Work
(1)An employer (A) must not, in relation to employment by A, harass a person (B)—
(a)who is an employee of A's;
(b)who has applied to A for employment.
F47(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F47(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F47(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) “Employment” means—
(a)employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;
(b)Crown employment;
(c)employment as a relevant member of the House of Commons staff;
(d)employment as a relevant member of the House of Lords staff.
Defined in s.83(2) · see it in the full Act“employment” and related expressions are (subject to subsection (11)) to be read with section 83;
Defined in s.212(1) · see it in the full ActThe provision proscribes employer harassment in relation to employment. It does not create an implied regime making an employer liable merely for failing to prevent third-party harassment. (see paras [49]; [97]-[101]) This repealed provision formerly expressly treated an employer as harassing an employee where a third party harassed the employee and the employer failed to take reasonably practicable preventive steps. Its repeal is material to the absence of a current statutory third-party regime. (see paras [59]-[60]; [97]-[101]) This repealed provision qualified the former third-party harassment regime by requiring knowledge of at least two earlier occasions of third-party harassment. Its repeal forms part of the removal of that express regime. (see paras [59]-[60]; [97]-[101]) This repealed provision defined third party for the former express third-party harassment regime. Its repeal forms part of the removal of that regime. (see paras [59]-[60]; [97]-[101])
Section 40 imposes the employer’s primary liability for harassment in relation to its employee. The liability remained with the transferor where the claimant did not transfer. (see paras [22]-[25]; [32]-[33])
The court held that section 40 contains no equivalent constructive-dismissal definition. Harassment therefore cannot itself found a statutory complaint of constructive dismissal, though it may be relevant to constructive unfair dismissal. (see The Statutory Framework; Discussion and Conclusions — Ground 1)
3 more judgments, and what each says about section 40, are in the case-law panel in the full Act.
145.This section makes it unlawful for an employer to harass employees and people applying for employment. It also makes the employer liable for harassment of its employees by third parties, such as customers or clients, over whom the employer does not have direct control. Liability in relation to third party harassment will however only arise when harassment has occurred on at least two previous occasions, the employer is aware that it has taken place, and has not taken reasonable steps to prevent it happening again.
146.This section is designed to replicate the effect of provisions in the Sex Discrimination Act 1975 as regards harassment by employers, and extend to the other protected characteristics (apart from marriage and civil partnership and pregnancy and maternity) the position in relation to employer liability for sex harassment under that Act.