No more third party harassment

The Equality Act 2010 imposed a new liability on employers for harassment where they fail to take reasonably practicable steps to prevent repeated harassment of an employee by third parties (e.g. students). Such liability does not apply to one-off incidents (i.e. it would have to happen on at least two other occasions), incidents of which the university has no knowledge and those over which it has no control.
The good news is that from 1 October 2013, this provision will be no more – it will be repealed by the Enterprise and Regulatory Reform Act 2013. That does not, however, remove all potential for liability where a student harasses a member of staff on the protected grounds (i.e. age, disability, race, sexual orientation, religion/belief, gender reassignment, marriage and civil partnership). If the university fails to respond to a complaint by a member of staff that he/she is being harassed by a student and that failure is because of a protected characteristic of the member of staff, the university could be liable for direct discrimination (i.e. less favourable treatment).
Universities are not vicariously liable for the conduct of students and, hence, are not liable for harassment of one student by another student. Nevertheless, a vulnerability to liability for direct discrimination similar to that already described above could arise if a university failed to investigate a complaint because of the complainant’s protected characteristic. The protected characteristics of marriage and civil partnership do not apply in the context of higher education.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E:
geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com      

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