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Third-party harassment | Tribunal rules cases must relate to a protected characteristic
Under the Equality Act (EqA) 2010, employers may be held vicariously liable for acts of harassment committed by one employee against another – but what happens when the perpetrator of the harassment is a client, supplier or visitor?
As an employer, you will no doubt want to do all you can to provide a safe and welcoming environment. This means taking a firm stance on all types of harassment, whatever its source. Aside from being the right thing to do, adopting a zero-tolerance approach to such behaviour is vital if you are to create a happy, motivated workforce.
Of course, it is easier to prevent and deal with instances of harassment that are committed by those under your watch than those who you, in effect, have no authority over. However, this doesn’t relieve employers of their responsibilities in this regard, and employees may still be able to bring a claim for third-party harassment under the general harassment provisions in Section 26(1) of the Equality Act 2010. In cases of this nature, if the employer was aware that harassment has occurred on two previous occasions and failed to take reasonable steps to prevent it from happening again, they may be found liable.
"Related to a protected characteristic"
Previously, protection from third-party harassment was dealt with in sex discrimination legislation – covering sexual harassment cases – but has since been extended extensively in the EqA to cover all nine protected characteristics.
In order for a harassment claim to fall within the scope of the EqA, the unwanted conduct must be related to one of these characteristics. In cases where harassment is committed by one employee against another, this is relatively straightforward to prove or disprove; however, when dealing with a complaint of third-party harassment, things can become more complicated, as it is the employer’s conduct/inaction that must itself be related to the characteristic in question.
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Bessong v Pennine Care NHS Foundation Trust
The Claimant in this case, Mr Bessong, was a black African mental health nurse employed by Pennine Care NHS Foundation Trust. He was suffered a serious racially-motivated assault by a patient on the ward, where he was punched, threatened to be stabbed, and subjected to racially offensive language. The incident left Mr Bessong with significant facial swelling and was reported to the police; however, the employer’s incident report made no mention of the racial element of the assault.
Mr Bessong subsequently complained to an Employment Tribunal, alleging direct and indirect race discrimination, in addition to harassment on the grounds of race. The Tribunal found that by having no comprehensive system in place, the Trust had failed to ensure incidents of racial abuse were properly reported, and for this reason, Mr Bessong’s claim for discrimination succeeded.
However, in relation to the claim for harassment, while it accepted that the Trust had failed in its duty to protect Mr Bessong from such abuse, its lack of action, in and of itself, was not related to race. On this basis, it did not fall within the scope of the EqA, and the Trust could not be found guilty of harassment.
This verdict was later upheld by the Employment Appeal Tribunal, where it was found that although the Trust’s failings had contributed to the incident in question, this was not related to race.
Lessons for employers
The specific rules around third-party harassment were deleted from the Equality Act in 2013. Since then, claims of this sort have to be brought via the backdoor, and the opportunity to do even that decreased following a Court of Appeal decision last year. Now, a claimant has to show that their protected characteristic was the reason for the employer’s failure to protect them from harassment by a third party. It’s quite a high bar.
The deletion of the rules about this was controversial at the time and is perhaps even more so currently, especially in light of the #MeToo movement. The Equality and Human Rights Commission and the Women and Equalities Select Committee have both called for the rules to be reintroduced and it was one of the many things the government has been consulting upon recently. That consultation is now closed, and I would not be surprised to see legislation brought forward in the near future to reintroduce this protection.
As always, support from a qualified Employment Law specialist can provide valuable guidance and reassurance when it comes to fulfilling your legal duties.