To what extent, if any, are employers liable for racial harassment of their staff by third parties? The Employment Appeal Tribunal (EAT) gave authoritative guidance on that issue in a case concerning a mental health nurse who was assaulted and racially abused by a patient.
The nurse, who is black and worked in a secure mental health unit, was punched in the face several times by the patient, who threatened to stab him with a pen. The attack was accompanied by an offensive remark referring to his race. The nurse later launched proceedings against his NHS trust employer.
In upholding his indirect discrimination claim, an Employment Tribunal (ET) found that the trust had failed to take adequate steps to ensure that every incident of racial abuse by third parties against its staff was reported. Through that inaction, a culture had developed whereby employees considered that it was pointless to report such incidents on every occasion. As a result, the risk of such abuse had been under-appreciated and dealing with it under-prioritised.
The ET, however, dismissed the nurse’s direct discrimination and harassment claims on the basis that the trust’s incident reporting failure was neither consciously nor subconsciously because of race. The fact that the abuse was racial in nature played no part in the mental process of management in failing to ensure that such incidents were properly reported.
In dismissing the nurse’s challenge to that part of the ET’s ruling, the EAT noted that the Equality Act 2010 imposes no explicit liability on an employer for failing to prevent third-party harassment. It rejected arguments that Section 26(1) of the Act should be interpreted so as to outlaw foreseeable and preventable third-party harassment without a requirement that the employer’s failures are themselves related to race.
Neither Directive 2000/43/EC (the Race Directive) nor any other provision of EU law required the UK government to enact a provision to that effect. The EAT reached its conclusions despite noting that liability for third-party harassment has, in certain circumstances, much to commend it. An application for a ‘leap-frog’ order, enabling the nurse to appeal directly to the Supreme Court, was refused.
