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04/08/2021

Is an employer liable where an employee is harassed by other employees or customers because they are from a country with a high incidence of COVID-19?

  • There have been reported incidents of racial harassment of Asians in relation to COVID-19. Unfortunately, there is the potential that employees may be harassed by colleagues or customers in the workplace because they are perceived to be at a greater risk of having the virus.
  • For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer. The employer can be liable for harassment in these circumstances, whether or not the harassment is done with the employer's knowledge or approval.
  • There is a defence available to an employer if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act or from doing anything of that description.
  • Employers would be advised to establish a zero-tolerance approach to harassment in the workplace, which is communicated both internally and externally, ensure all workers are aware of their anti-harassment policy and provide training to all staff on how to recognise harassment and what is inappropriate behaviour.
  • The position is more complicated when an employee is harassed in the workplace by a third party, such as a customer or visitor. The third-party harassment provisions in the Equality Act 2010 were repealed in 2013 and the scope of the protection offered by the general harassment provisions of the Equality Act 2010 have been considerably narrowed by case law since then. To establish liability, the employee would need to show that it was their employer who "created" the intimidating, hostile, degrading, humiliating or offensive environment which is likely to be difficult to prove. For further information, please contact us.

For more information or advice on any employment law issues contact Irina Polyakova at irinapolyakova@eatonsmith.co.uk or Lewis Holroyd at lewisholroyd@eatonsmith.co.uk or call them on 01484 821 300