Liability of employer for third party harassment
Third party harassment can happen in the workplace when someone other than the employer harasses the employee.
This might include patients, customers or visitors. The Employment Appeal Tribunal has recently looked at whether an employer will be responsible for third party harassment.
In Bessong v Pennine Care, the employee was a nurse. He was assaulted and injured by a patient who shouted racist abuse at the same time. The employer called the police but didn’t mention the racial element. The employee brought various claims against the employer, including one for racial harassment based on the attack. The employment tribunal dismissed the harassment claim. They found that the Trust had failed to create a culture where racist incidents were reported, making racial harassment from patients more likely. Although this was unwanted conduct by the employer, it was not conduct related to race. The employee's harassment claim failed.
The Employment Appeal Tribunal agreed. The employer's actions (or failure to act) had to relate to race (or another protected characteristic) for the employer to be liable. In this case, the employer's failure to take adequate steps to prevent racial harassment at work was not due to race.
A government consultation has taken place recently on whether to introduce new third-party harassment provisions into the Equality Act 2010. Calls for this change have come from the Equality and Human Rights Commission and the Women and Equalities Select Committee. We are still waiting for the outcome of this consultation so watch this space. Also look out for the employee's appeal in this case.