Can an employer be liable for third party discriminatory harassment of their employee?
There are many sectors like hospitality, health care and retail where staff work closely with the public and other third parties, whilst performing their duties. With such close connections, staff could be subjected to verbal abuse, threatening behaviour or assaults that could also be of a sexual nature, racial or otherwise. Usdaw’s annual Freedom From Fear survey reported that over the past year over two-thirds of shop workers were verbally abused; 37% were threatened and around 265 were assaulted every day which is a 25% increase from last year. In such circumstances, could an employer be liable for third party harassment?
Section 26 equality act 2010
Under section 26 of the Equality Act 2010 (EA 2010), harassment occurs when a person engages in unwanted conduct related to a relevant protected characteristic (such as race, sex, age, disability, religion and sexual orientation) which has the purpose or effect of either violating the other person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment
Despite the above provision, employees currently have very little protection where they are harassed by a third party as the statutory protection relating to third party harassment was repealed back in 2013.
Since it’s repeal, it was thought that an employer's failure to prevent harassment by a third party was itself unwanted conduct and all that was needed was a loose connection for the employer to be liable.
Employers Liability
However, in the case of Unite the Union v Nailard 2018 the Court of Appeal held that this is a very high threshold to be liable. It was therefore held that the employer themselves must have had discriminatory motivation or intention for failing to act in the face of complaints of third-party harassment.
Further to the above decision, the Employment Appeal Tribunal (EAT) have recently readdressed the matter in the case of Bessong v Pennine Care NHS Foundation Trust 2019. Mr Bessong, a black African mental health nurse working for Pennine Care NHS Foundation Trust (the employer) was subject to a serious assault and racist abuse by a patient. Mr B brought claims of direct and indirect discrimination and racial harassment against his employer.
The Employment Tribunal (ET) held that 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. It found that there was a perception amongst many black staff that reporting every single racist incident was pointless.
The ET found that the incident reporting failing represented unwanted conduct on the part of the employer but did not accept that such conduct (in the form of inaction) was "related to" race to bring it within the scope of section 26(1) of EA 2010.
The Claimant appealed on grounds which included that the ET misinterpreted section 26(1) EA 2010 in requiring that, in a complaint of third-party harassment, the employer's conduct/inaction must itself be related to race.
The EAT held that the Race Directive and by analogy section 26(1) EA 2010 did require an employer's conduct/inaction itself to be related to race in order to give rise to any liability for third-party harassment. It also confirmed that the ET, and now the EAT, was bound by the Court of Appeal decision in Unite the Union v Nailard that an employer has no liability under EA 2010 for failing to prevent third-party harassment.
The Court of Appeal concluded that the availability of liability for third party harassment was a matter for Parliament and specific statutory provisions would need to be enacted to cover this. The government’s consultation on whether new third-party harassment provisions should be introduced closed in October 2019 and the outcome is awaited.
Whether or not the law changes in this area, employers should ensure that they have appropriate dignity at work / harassment policies in place and that staff receive regular training so as to prevent issues from arising as employers do have a broader duty of care to protect the health ,safety and welfare of their employees as far as it is reasonably practicable.
If you have any queries in regards to third party discrimination of employees, please call us on 0333 240 7208 and one of our advisers will be able to help. Alternatively, please contact us here.
