EAT reaffirms that employers will not be liable for harassment of their employees by third parties

EAT reaffirms that employers will not be liable for harassment of their employees by third parties, unless their action or inaction is on the ground of a protected characteristic - Bessong v Pennine Care NHS Foundation Trust.

The Employment Appeals Tribunal (‘EAT’) has upheld a decision of the Employment Tribunal (‘ET’) that employers are not liable for third party harassment where its conduct or inaction is unrelated to race.

Currently, an employee who is harassed at work by a third party has limited legal protection. Previously, employers could be liable under Section 40 of the Equality Act 2010 (EqA) if they failed to take steps as would have been reasonably practicable to prevent it and knew that the employee had been harassed at work by a third party on at least two other occasions. However, these specific rules were repealed in October 2013.

The Claimant, who worked for the Respondent, was subject to serious assault and racial abuse by a patient and brought claims for direct and indirect race discrimination and harassment against his employer. The ET agreed that the Respondent’s failure to have a system for comprehensively reporting incidents of racial abuse amounted to indirect race discrimination.

In relation to his claim of direct discrimination and harassment, the ET decided that, although the employer had failed to create an environment in which racist incidents can be formally reported, this failure was not because of race.

On appeal it was argued that Article 2(3) of the European Race Directive requires Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer's failures were themselves 'related to' race.

The EAT concluded that, in domestic legislation, section 26(1) EqA 2010 seeks to prohibit unwanted conduct that is related to race; it does not have the effect of imposing liability when there is no such relationship between the conduct in question and race.

It noted that the Claimant’s interpretation would create a situation of strict liability for employers where they could be liable for acts of third parties, despite having no motivational element related to race on its part.

It also confirmed that in any event, it was bound by the Court of Appeal decision in Unite the Union v Nailard that an employer has no liability under for failing to prevent third-party harassment.

The case reaffirms the current position that employers will not be liable for third party harassment unless their failures relate to a protected characteristic and is in line with the controversial removal of the provisions in section 40 of the EqA.

Avoiding such claims is still however important for employers, not only to avoid the expense and time in defending an ET claim, but to avoid any reputational damage of failing to provide protection against third party harassment. Employers should therefore take the necessary steps to prevent issues arising such as investing in training and producing policies that are enforced and followed in the workplace.

Significantly for employers, this is an area of employment law that may see future change. In this case, the EAT denied the Claimant permission for a leapfrog appeal to the Supreme Court, however it is likely that permission to appeal to the Court of Appeal will be sought. The Government also launched a consultation on whether new third-party harassment provisions should be introduced and, if so, when an employer should become liable. This recently closed on the 2 October 2019 and the outcome is awaited.

In light of the #MeToo movement, and the extent of third-party sexual harassment at work that this movement has uncovered, third party harassment is very much an area in which reform is being pushed for.