With effect from 6 April 2008, the Sex Discrimination Act 1975 has been amended so as to create a new category of potential liability on the part of employers in relation to acts of harassment or discrimination done to their employees by third parties with whom they come into contact at work such as customers, clients or suppliers.
Previously, liability on the part of employers for such acts was limited to circumstances where the employer, despite knowing of a problem, failed to act to prevent the acts from taking place and that the failure was due to the complainant's sex. The amendment now provides for an employer to be liable for knowingly failing to prevent repetitive harassment of an employee where the employer knows such harassment has taken place on at least two previous occasions. Furthermore, the amendment provides that "...it is immaterial whether the third party is the same or a different person on each occasion." That means that if an employee is subject to sexual harassment on three occasions by different individuals, the first two of which were made known to the employer who then failed to take "reasonably practicable" steps to prevent the third act, the employer will be liable.
It can be seen that for employers who provide services to the public at large, this may be an extremely difficult issue to police. If one considers the example of a train company whose on-train staff are dealing with an ever-changing customer population, it may be difficult to identify and take action against offenders so as to prevent such behaviour towards its employees, although many such companies already have a policy to prosecute through the criminal courts those who assault their staff. Provided that policy is well-advertised, the employer may have a basis for saying it has taken reasonably practicable measures to prevent the act from occurring thus availing itself of a defence to a claim.
However, that will not be sufficient to escape liability in each and every case and if there are particular facts or circumstances that reveal in a specific case that there is a higher risk an employee may be particularly vulnerable to such acts, the employer will be expected to do more to reduce the threat.