When Could You Be Held Liable for Third-Party Harassment Claims?
An Employment Appeal Tribunal confirmed the extent to which employers may be liable for harassment of their employees by third parties.
What Is Third Party Harassment?
Under section 26 of the Equality Act 2010 (EqA 2010), harassment occurs when a person engages in unwanted conduct related to a relevant protected characteristic (such as race) which has the purpose or effect of either:
- violating the other person's dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment
Employees have limited protection where they are harassed in the workplace by a third party, such as a customer, visitor or patient. There used to be statutory protection in respect of third party harassment under section 40 EqA 2010, however this was repealed in 2013. Since the repeal, recent case law has established that employers are only liable for harassment where the reason for the failure to protect the employee from harassment by the third party was itself related to the protected characteristic.
Bessong v Pennine Care
Mr Bessong was a black African mental health nurse working for Pennine Care NHS Foundation Trust (the Trust). Whilst at work Mr Bessong was assaulted on racial grounds by a patient. Mr Bessong 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.
Whilst the ET upheld Mr Bessong's indirect discrimination claim, they dismissed his claims for direct discrimination and racial harassment. This was because the ET found that, whilst the Trust had failed to create an environment in which all racist incidents were formally reported, this failure was not itself related to Mr Bessong's race.
The Appeal
On appeal, the Employment Appeal Tribunal upheld the ET's decision: unless the employer engages in unwanted conduct which itself relates to race (or another protected characteristic), there can be no liability for harassment. If an employee is able to demonstrate that the reason for the employer's failure to provide protections related to the employee's race, there is a higher chance of liability on the part of the employer.
What Does This Mean for You?
Employers should be aware that they are under an obligation to prevent harassment and other forms of discrimination from arising. Employers should ensure that an appropriate dignity at work policy is in place and that staff receive regular training to prevent issues from arising. Employers also need to be aware of their broader duty to take reasonable care of the health and safety of employees.
It is also possible that third party harassment is an area in which we see future change. It is expected that permission appeal to the Court of Appeal will be sought and we will report back with further developments. There is also a push for third party harassment provisions to be reinstated to the EqA 2010, particularly in light of the #MeToo movement. A government consultation has recently concluded, seeking views on whether new third-party harassment provisions should be introduced and, if so, when an employer should become liable. The outcome of that consultation is awaited and we will provide further updates on this when they arise.
Are you currently involved in a third-party harassment claim? Please contact Nick Murrell in our Employment Law team on 0117 314 5627 or by completing the form below.