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Can an employer be liable for third-party harassment?

Solicitor, Jordan Hassan

The Employment Appeal Tribunal in the case of Bessong v Pennine Care NHS Foundation Trust has considered whether an employer should be liable for harassment against one of its employees based on the actions of a third party, as it can be for actions of its employees.

Background

The Claimant worked as a mental health nurse for Pennine Care NHS Foundation Trust (“the Respondent”). The Claimant was subject to racial abuse and physically assaulted by a patient which resulted in him attending hospital for treatment. The patient who carried out the attack had a history of racist behaviour towards members of staff and had made racist comments the day before the Claimant was assaulted.

The Claimant alleged that the Respondent had not taken appropriate steps to prevent the patient’s assault and that he was subject to racial abuse from patients without redress. The Claimant brought claims in the employment tribunal against the Respondent for direct and indirect discrimination and harassment.

The Law

Under section 26 of the Equality Act 2010, (A) harasses (B) if (A) engages in unwanted conduct which is related to a relevant protected characteristic and the conduct has the purpose or effect of:

  • violating (B)’s dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for (B).

Decision

The Employment Tribunal found that the Claimant had been subject to indirect discrimination because of the Respondent’s practice of not reporting all incidents of racial abuse.  However, the Tribunal rejected the harassment claim on the basis that, although the reporting failings led to an environment in which racial abuse was more likely to occur and amounted to unwanted conduct, that conduct (i.e. the inaction of the Respondent to report all incidents of racial abuse) was not itself related to race.

The Claimant appealed to the Employment Appeal Tribunal (“EAT”) on the grounds that the Tribunal had misinterpreted section 26 of the Equality Act 2010 by requiring the conduct of the Respondent itself be related to race in relation to a complaint of third party harassment.

The EAT dismissed the appeal confirming that it was bound by the Court of Appeal’s decision in Unite the Union v Nailard which held that an employer will only be liable under section 26 of the Equality Act 2010 if the employee can show that a protected characteristic was the reason for the employer’s failure to protect them from third party harassment.

Comment

The decision may be a welcome one for employers, as it confirms that liability for third-party harassment is limited to acts or omissions which are related to a protected characteristic such as race. It should serve as a reminder that employers should have adequate procedures in place for reporting instances of discrimination. Doing so will ensure that employers are able to take action where reports of discrimination are made and reduce the risk of indirectly discriminating against employees.

It is worth noting that employers used to be liable for third-party harassment on the basis of a ‘three strikes’ rule under section 40 of the Equality Act whereby the employer knew that the employee had already been harassed by a third party on at least two occasions. This was removed in 2013. A government consultation ran from 11 July to 2 October 2019 about whether new provisions of this kind should be introduced, however we are still awaiting the outcome of this consultation.

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