A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
• Violating B’s dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(Section 26(1), Equality Act 2010 (EqA 2010).)
The EAT decided that an employer was not liable when a patient racial harassed one of its employees on the basis that any failure to take adequate steps to prevent racial harassment in its workplace were not because of race. Following the Court of Appeal’s decision in Unite the Union v Nailard  EWCA Civ 1203, an employer will only be liable for the third-party harassment of an employee where the employer’s action or inaction is because of the relevant protected characteristic.
The wording of section 26(1) reflects the wording used to define harassment in the EU discrimination directives. For example, Article 2(3) of the Race Directive (2000/43/EC) states that harassment occurs where “unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”.
A government consultation on whether new third-party harassment provisions should be introduced and, if so, when an employer should become liable, ran from 11 July to 2 October 2019. The consultation sought views on whether the reasonable steps defence should apply and whether an employer’s constructive knowledge of the harassment will be sufficient for it to be liable. The outcome is awaited.