Is an employer liable for harassment of its employees by third parties?

Dentons

The extent to which an employer is responsible in law for the harassment of its employees by third parties has changed several times over the years. As originally enacted, the Equality Act 2010 made employers liable for failing to protect employees against harassment by third parties in some situations. The requirements were that the harassment was related to a protected characteristic and that the employee had been harassed at least twice before. This was the so-called "three strikes rule" and it was quite controversial. However, the fact that the rule was then repealed entirely in October 2013 was perhaps even more controversial.

Since then there has been no legislation specifically making employers responsible for failing to protect employees against such harassment. In the recent case of Bessong v Pennine Care NHS Foundation Trust (the Trust), the Employment Appeal Tribunal (EAT) rejected a claim arising from third party harassment and confirmed that UK equality legislation does not now impose liability on an employer for failing to protect an employee from such harassment.

Facts of the case

Mr Bessong is a black African who worked as a mental health nurse. He was assaulted both physically and verbally by a patient on racial grounds. The Trust made a report to the police, but did not mention that the assault was linked to his race. Mr Bessong brought claims against the Trust for direct discrimination, harassment and indirect discrimination. In the Employment Tribunal (ET) his indirect discrimination claim, relating to the reporting of the assault, was successful, but his claim of harassment was dismissed. That claim was rejected because the ET concluded that the Trust's failure to protect Mr Bessong from racist harassment was not itself related to race. While the assault was clearly racially motivated, the Trust's actions were not.

Mr Bessong also argued that the Trust's failure to report the incident properly was a further example of unwanted conduct that amounted to harassment under section 26(1) of the Equality Act. He was unsuccessful with this argument for the same reason. The ET held that, while the failure to report the assault as an incident of racism was unwanted conduct, it was not "related to" race as required by section 26.

Mr Bessong appealed against the rejection of his harassment claims on various grounds, including that section 26 should be construed in accordance with the EU Race Directive 2000/43/EC. In particular, he argued that Article 2(3) of this Directive should be interpreted as requiring member states to make employers responsible for third party harassment, even if their failure to do so was unrelated to race – i.e. it would be sufficient that the racist conduct by the third party took place.

Counsel for Mr Bessong sought to support his argument on the Race Directive with reference to a number of other international laws, including the Charter of Fundamental Rights of the European Union, and a new Convention and Recommendation to end violence and harassment in the world of work, which was passed by the UN in June this year, but has not yet been ratified by the UK. 

EAT decision

The EAT rejected these arguments.

It concluded that there is nothing in the Directive to suggest that an act (or failure to act) that is not itself related to race should be deemed to be discriminatory and prohibited. It pointed out that if Mr Bessong's interpretation were correct, it would amount to imposing strict liability. Employers would be liable for acts of third party harassment "irrespective of any motivational element relating to race on [the employer's] part."

The EAT went on to say that in any event it was bound by the 2018 decision of the Court of Appeal in Unite the Union v Nailard. In that case, the court found that an employer would only be liable for harassment under section 26 if it can be shown that the relevant protected characteristic was "the ground" for the employer's failure to protect an employee from third party harassment. That is a very difficult test to satisfy as the focus is on the employer's grounds for not protecting the employee from the harassment and not the circumstances of the harassment by the third party.

Conclusion

In short, employers will only be liable under the Equality Act for harassment by a third party if their failure to protect the employee was itself related to a protected characteristic.

Despite this clear statement on third party harassment, it is still important to remember that allowing an unsafe or threatening working environment to continue may give rise to other claims, such as constructive dismissal. In addition, the government's recent consultation on sexual harassment, which concluded on 2 October 2019, included a proposal to reinstate liability for third party harassment. 

As for now, the UK law is clear in the way that employees have no direct right to make a claim against their employer for third party harassment. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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