With effect from 1st October 2013, the Enterprise and Regulatory Reform Act 2013 (Commencement No. 3, Transitional Provisions and Savings) Order 2013 repeals the third party harassment provisions set out in S.40 of the Equality Act 2010 (EA 2010). Under these provisions, an employer is 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, however, only arises 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. From a legal perspective, the only protection which will be available from 1 October in such circumstances is that described by the House of Lords in Pearce v Governing Body of Mayfield School [decided in 2003] that while an employer's failure to prevent third parties committing acts of sexual/racial harassment might amount to discrimination by the employer, it will only do so if the employer failed to take such steps because of the employee's sex/race (or in the more general context of the current legislation, any other relevant protected characteristic covered by the harassment provisions set out in S.26 of the EA 2010).
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