Race discrimination and third party harassment


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The Employment Appeal Tribunal (EAT) has held that section 26(1) of the Equality Act 2010 could not be interpreted to impose liability on an employer for third-party harassment against employees in Bessong v Pennine Care.

The Employment Appeal Tribunal (EAT) has held that section 26(1) of the Equality Act 2010 could not be interpreted to impose liability on an employer for third-party harassment against employees in Bessong v Pennine Care. Section 26(1) provides that that a person harasses another if they engage in unwanted conduct related to a protected characteristic, and that conduct violates the individual's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the individual.

The Claimant worked as a mental health nurse and was assaulted by a patient on racial grounds.  At first instance the tribunal found that, as a result of various failures on the part of the employer, including a failure to ensure that all incidents of racial abuse were reported, the Claimant had been indirectly discriminated against.  However, it rejected the Claimant's claim of harassment because the employer's failings were not themselves related to race.

On appeal, the EAT considered whether the Race Directive requires Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer's failures were themselves "related to" race.  It held that this could not be the case as, if it were, the impact would be "to create a situation of strict liability for employers whereby they would be liable for acts of third-party harassment irrespective of any motivational element relating to race on its part".  It followed that the Race Directive did not have the effect of imposing liability when there is no such relationship between the conduct in question (here, a failure to act or take steps) and race.

Take note:  The decision in Bessong is of particular importance to care providers where service users may behave in a way which leads to the harassment of employees.  On the facts of this case, Pennine Care failed to ensure universal reporting of racist incidents.  It was held that there was nothing in the employer's failure which was related to race other than the subject matter of the failure and so Pennine Care could not be liable for the third-party harassment.

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