Employment and Immigration Law Update - Employer's liability for third-party harassment


26 November 2019

When is an employer potentially liable for third-party harassment under the Equality Act 2010? The Employment Appeal Tribunal (EAT) has recently considered the circumstances when employers might be found liable.

Bessong v Pennine Care NHS Foundation Trust, UKEAT/0247/18

Facts

The claimant was employed as a mental health nurse. While on duty, he was physically and (with reference to his colour) verbally assaulted by a patient, resulting in hospital treatment for a facial injury.

He brought claims against the Trust for direct and indirect race discrimination and harassment. His claim for indirect discrimination was upheld; the Trust had failed to take adequate steps to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. This failure contributed to an environment in which racial abuse from patients was more likely to occur, which amounted to unwanted conduct on the part of the Trust for the purposes of harassment. However, this unwanted conduct was not ‘related to’ race, as required to establish a claim for harassment under the Equality Act 2010. The claimant’s claims for direct discrimination and harassment were dismissed. He appealed to the EAT.

EAT decision

The claimant’s appeal was dismissed by the EAT. The Trust was not liable for the racial harassment by a patient, because its failure to take adequate steps to prevent the harassment (by not ensuring all such incidents were reported) was not because of race. An employer can only be liable for a third party’s harassment of one of its employees where the employer’s action or inaction is because of the relevant protected characteristic, which was not found to be the case here.

Consequences

This decision confirms that an employee will only be able to establish an employer’s liability for third party harassment in quite limited circumstances. However, employers should still take action to deal with incidents of third party harassment, as a failure to do so may give rise to other grounds of complaint (such as constructive dismissal).

The Government has recently conducted a consultation on proposals to reintroduce third-party harassment provisions in the Equality Act 2010. The consultation closed on 2 October 2019 and the Government’s response is still awaited.

This article is from the November 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.