209: Employment Appeal Tribunal considers extent of employer’s liability for harassment of employees by third parties

Before the repeal of the relevant legislative provisions in 2013, employers could be held liable for the harassment of employees by third parties such as customers, clients or patients. Since then, case law has established that liability will only arise in limited circumstances. An employer’s reaction (or lack of reaction) to a third party’s harassment of an employee might still amount to discrimination under the Equality Act 2010 where the employee can show that the protected characteristic was the reason for the employer’s failure to protect them. In the recent case of Bessong v Pennine Care NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has held that an employer was not liable for the racial harassment of an employee by a patient because its failure to prevent the harassment was not on grounds of race.

Mr Bessong worked as a mental health nurse for Pennine Care NHS Foundation Trust. He is a black African and was physically and verbally assaulted by a patient on the grounds of his race. The incident report made by the Trust did not mention the racial element of the assaults. Mr Bessong subsequently brought claims of direct and indirect race discrimination and racial harassment against the Trust.

The Employment Tribunal found that the Trust had failed to take adequate steps to ensure that staff reported all incidents of racial abuse on an incident reporting form and that there was a perception amongst many black staff that reporting every single racist incident was pointless. The Tribunal upheld Mr Bessong’s indirect discrimination claim but dismissed his claims for direct discrimination and racial harassment. Although the Trust’s failure to create a culture in which all racist incidents were formally reported contributed to an environment where racial abuse from patients was likely to occur, this failure was not in itself related to race. The Trust could therefore not be held liable for racial harassment by a patient.

On appeal, the EAT upheld the Tribunal’s decision, confirming that unless the employer’s action or inaction itself relates to the relevant protected characteristic, in this case, race, there can be no liability for harassment. The EAT also dismissed Mr Bessong’s argument that EU law requires employers to be liable for third party harassment.

This case may be appealed to the Court of Appeal. A government consultation on whether to re-introduce third party harassment provisions into the Equality Act 2010 closed on 2 October 2019. This follows repeated calls from the Equality and Human Rights Commission and the Women and Equalities Select Committee for the provisions to be reinstated. At present, however, employers will only be liable for third party harassment where their action or inaction is itself motivated by discrimination.