Harassment by third parties

The Employment Appeal Tribunal recently ruled that a local authority was liable for the racial harassment of an employee by a service user, a child in one of its care homes. Kevin McCavish analyses the judgment.

The Employment Appeal Tribunal has ruled in Sheffield City Council v Norouzi UKEAT/0497/10 that a Council was liable for the racial discrimination and harassment of its employee by a child in a care home.

The law on racial discrimination is now contained in the Equality Act 2010 which came into force last year. Although this case considered the earlier law, the Race Relations Act 1976 (RRA), the principles it demonstrates remain relevant going forward.

The facts

The claimant was of Iranian origin and worked as a residential social worker at a home for troubled children. One of his charges was regularly offensive to him; she mimicked his accent and told him to go back to his own country. In July 2008 the claimant went off on long-term sick leave, he brought indirect race discrimination and race harassment claims against his employer, Sheffield City Council.

Indirect race discrimination claim

The claimant argued that the council had applied the following “practices” which put him, as a non-British person, at a particular disadvantage and that this could not be justified.

• Letting racist behaviour by residents persist by not investigating racist abuse and harassment that took place.
• Letting racist behaviour by residents persist by not adequately challenging and taking sufficient remedial steps against such behaviour by residents.
• Letting racist behaviour by residents become "normalised".
• Not having support mechanisms in place for staff who have been victims of repetitive racist abuse and harassment by residents.

Harassment claim

The definition of harassment under the RRA was unwanted conduct, on the grounds of race which had the purpose or effect of violating an employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Although the child’s behaviour satisfied the definition of “harassment” it was not possible under the RRA for an employer to be held liable for harassment by third parties. In this case the Council’s failure itself to take action to prevent the harassment was not conduct “on the grounds of race”.

Therefore, the claimant relied on the European Race Directive: as an employee of a public sector body he could rely directly upon the directive. He argued that the directive clearly envisaged an employer being held liable, "for failing to take action where there is a continuing course of offensive conduct, which the employer knows of but does nothing to safeguard against".

The tribunal’s decision

The tribunal found that from December 2007 the Council had failed to do enough to protect the claimant. Specifically it found that:

• following an incident in December 2007 the Council failed to intervene sufficiently and this demonstrated that the Council was "letting racist behaviour persist by not investigating incidents and not adequately challenging [child A]" which allowed "…racist behaviour to become normalised".
• The Council was on notice from February 2008, that the child’s behaviour towards the claimant was an issue which was upsetting him and it should have been more proactive in dealing with further incidents of racial abuse.
• At the point that the claimant made it clear to the Council that any further incidents would be unacceptable in April 2008 the Council should have put more effective support mechanisms in place for him.

The tribunal therefore upheld both the indirect discrimination and harassment claim. The Council appealed.

The EAT decision

The EAT dismissed the appeal.

The EAT acknowledged that the Council was not automatically liable for the child’s behaviour and it recognised that there will be some environments such as prisons, care homes and some schools where employees have to accept abuse as part of the job because it will not be easy for employers to prevent such harassment. In its view, "the employer should indeed not too readily be held liable for conduct by third parties which is in truth a hazard of the job; and if it is to be held liable on the basis that insufficient steps were taken to protect the employee in question a tribunal must be prepared to focus on what precisely could have been done but was not done".

However, in this case the tribunal had identified various steps which the Council could have taken, such as:

• having a policy covering such situations
• discussing the incidents with the claimant and giving him support and guidance
• working with the child to modify her behaviour.

Mocking accent was harassment

The Council tried to argue that the child’s motive in mocking the claimant’s accent was to rile him because he was a figure of authority and therefore her actions were not racially motivated. The EAT rejected this, the child was in fact mocking a racial characteristic of the claimant, namely his “foreign” accent. Because of this, the fact that her underlying motive was not to do with his race, was irrelevant.

Comment

Under section 40 of the new Equality Act 2010, employers are now liable for third party harassment. However, this only applies where an employee has been subjected to third party harassment on at least two other occasions. As in this case however, employees of public sector employers should be able to rely directly on the Race Directive.

The lesson for employers from this case is to be proactive in dealing with issues of which they are aware. Although employers will not always be able to stop abuse by third parties, liability is likely to be incurred where there has been a persistent failure to address problems.

Action points for employers

• Carry out a risk assessment to identify which roles/groups of employees might be particularly vulnerable to third party discrimination/harassment and what measures can be put in place to minimise the risks identified.
• Put in place a policy and reporting procedure dealing with third party discrimination/ harassment. Publicise the policy internally so employees are aware the issue is “on the radar”.
• Ensure employees know where they can get help and support where they are facing difficulties with third parties in the course of their employment. For example, consider setting up a dedicated assistance “hotline” for employees.
• Never ignore a “cry for help” from an employee. Consider in a timely manner what, if anything can be done to alleviate the situation.

Kevin McCavish is a partner at Shoosmiths. He can be contacted on 03700 86 8802 or by email atThis email address is being protected from spambots. You need JavaScript enabled to view it..