In the recent case of Bessong v Pennine Care NHS Foundation Trust, the Employment Appeal Tribunal has held that employers cannot be liable for third-party harassment, except where the employer’s action or inaction is directly linked to a protected characteristic.
Employers used to be liable under the Equality Act 2010 for harassment to employees by third parties (i.e. visitors, customers or patients). The employer would be liable if it had failed to take steps to prevent the harassment and knew that the employee had been harassed by a third party in the course of their employment on at least 2 other occasions. This was repealed in 2013 and employees now have limited protection when they are harassed in the workplace by a third party.
The claimant was employed by Pennine Care NHS Foundation Trust (the Trust) as a mental health nurse. He is a black African and was physically and verbally assaulted by a patient on the grounds of his race. The Trust made an incident report but no mention was made of the racial element of the assault. The claimant consequently brought claims of direct and indirect race discrimination and racial harassment against the Trust.
The tribunal upheld his claim of indirect race discrimination. However, it dismissed his claim of direct race discrimination as the Trust’s conduct in failing to report the incident was not directly related to race. It also dismissed his racial harassment claim. The tribunal found that a failure to create a culture in which all racist incidents were formally reported contributed to an environment in which racial abuse from patients was more likely to occur. This did constitute unwanted conduct, but this conduct was not related to race and so did not constitute harassment under the Equality Act 2010. The claimant appealed.
The EAT dismissed the appeal, stating that an employer could only be liable for third-party harassment where the employer’s action or inaction was related to the relevant protected characteristic (in this case, race).
This case confirms that, at the moment, employers remain largely safe from third-party harassment claims, unless the employer’s behaviour is itself motivated by discrimination.
The removal of the third-party harassment provisions in the Equality Act in 2013 was controversial and remains so. The Equality and Human Rights Commission and the Women and Equalities Select Committee have repeatedly requested the Government to reinstate it. The Government carried out a consultation in its reintroduction which ended in October 2019. We wait to hear the outcome of this consultation.