When is an employer liable for harassment by a third party?

The Employment Appeal Tribunal

The Employment Appeal Tribunal (“EAT”) in the recent case of Bessong v Pennine Care NHS Foundation Trust (2019) has clarified when an employer will be liable for harassment of its employees by a third party. The EAT has held that inaction by an employer to prevent harassment will only result in employer liability if that inaction itself was because of a protected characteristic. Failure to take action for any other reason will not give rise to liability for the employer.

The law

The Equality Act 2010 protects a person from discrimination, harassment or victimisation on the grounds of a person’s race. ‘Race’ for this purpose means a person’s colour, origin or nationality (including citizenship).

The Equality Act 2010 states that racial harassment will occur when a person engages in unwanted conduct related to a person’s race, which has the purpose of either:

• Violating the other person’s dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment.

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Since 2013, there has been limited protection for employees that are harassed in the workplace by a third party such as a customer, client or patient. Case law has clarified that an employer will only be liable for such incidents of harassment if the employer fails to protect its employee from harassment, and the reason for that failure is the protected characteristic itself.

The facts

Mr Bessong was a black African mental health nurse and was employed by the Respondent.

Whilst working, Mr Bessong was racially and physically assaulted by a patient. Mr Bessong sustained physical injuries to his face which required hospital treatment. Mr Bessong reported the incident to the Police and filed an incident report with his employer, however, the racial aspect of the assault was not recorded. Sadly, there was a general consensus among black staff that reporting every incident of racial abuse by patients was pointless.

Mr Bessong brought a claim for direct and indirect race discrimination and racial harassment against his employer.

The Employment Tribunal

The Tribunal upheld Mr Bessong’s claim for indirect discrimination, concluding that the Respondent had failed to take adequate steps to ensure that all staff reported every incident of racial abuse by patients.

The Tribunal, however, rejected the claim of direct discrimination and harassment. The Tribunal acknowledged that unwanted conduct for the purpose of harassment had occurred in relation to Mr Bessong, as the Respondent had failed to create a culture within which reports of racial abuse was reported, which resulted in an environment where racial incidents were more likely to occur.

However, the Tribunal held that this unwanted conduct by the employer was not related to race and therefore the Respondent could not be liable for harassment.

Mr Bessong appealed to the EAT.

Appeal to the EAT

The EAT upheld the Tribunal’s decision, reiterating that unless an employee can demonstrate that the reason for an employer’s failure to protect an employee from harassment actually relates to the employee’s race (or another protected characteristic), the employer will not be liable for any harassment that occurred. In this case, the EAT found that the Respondent’s inaction (failing to ensure that incidents were reported) was not related to race, and consequently, the Respondent could not be liable for harassment of Mr Bessong by the patient.

Impact on Schools

As an employer, schools should always keep their obligations under the Equality Act 2010 at the forefront of their mind when dealing with their employees. This includes the obligation to ensure that their staff are protected from harassment and discrimination at work. Schools should ensure that staff receive regular training, and appropriate policies should be put in place to ensure that all employees are aware of their obligations.

As this case demonstrates, there are also occasions when employers can be liable for harassment of staff by third parties. The obvious risk for schools is harassment of staff by parents, or even the pupils themselves. It is important that pupils are educated about discrimination and harassment perhaps as part of PSHE lessons. This is particularly topical given the prevalence of the #metoo campaign, and the No Room for Racism campaign within football. Schools should also consider circulating their code of conduct or behaviour policy to staff, pupils and parents to ensure that everyone is aware that discriminatory behaviour will not be tolerated.

Whilst this case clarifies the current legal position on third party harassment, the rules may soon be changing. The government recently ran a consultation, seeking views on whether the current laws provide the protections they’re supposed to, and whether there is more than can be done at a practical level to ensure people are properly protected at work. The consultation closed on 2 October 2019, so for the time being, watch this space.

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