Employer’s liability for third-party harassment: an ‘unworkable’ and superfluous provision?

Prior to the Equality Act 2010, only the Sex Discrimination Act 1975—following an amendment in 2008—contained an express provision rendering employers liable for acts of harassment by third parties. The Equality Act 2010 was designed to be a sim -pler, streamlined and unified anti-discrimination Act (see, for example, B. Hepple, Equality (Oxford: Hart, 2011); A. McColgan, ‘Reconstructing Discrimination Law’ (2007) PL 74; S. Deakin, ‘Editorial’ (to special issue on ‘Equality Law and the Act of 2010’) (2011) 40 ILJ 313). The Act expanded this provision across the seven relevant protected characteristics for harassment—Age, Disability, Gender Re-assignment, Race, Religion or Belief, Sex and Sexual Orientation (section 26(5) Equality Act 2010)—but the coalition government soon announced that they would consult on whether to remove this ‘unworkable’ provision as part of their 2011 plan for growth (HM Treasury, The Plan for Growth (2011), p 53, and later given effect by a Lords’ amendment to the Enterprise and Regulatory Reform Bill 2012–13). Given the ear -lier insertion into the Sex Discrimination Act, such an expansion seems sensible, as in a unified Act it would be particularly hard to justify it applying solely to sex; but on reflection is the provision unworkable or actually unnecessary?