Aleksandra Traczyk explores the recent Employment Appeal Tribunal case of Bessong v Pennine Care NHS Foundation Trust where a Trust employee was racially harassed by a patient, but the Trust escaped liability as its failure to act was not, in itself, related to the employee’s race. The case is relevant in the context of calls for third-party harassment provisions to be reintroduced into the Equality Act 2010.
Since the Equality Act 2010 was amended on 1 October 2013, employers are no longer liable for harassment of their employees by a third-party. This is an issue that has come into sharp focus recently in the context of the #MeToo movement and growing concern about sexual harassment. Under pressure from the Equality and Human Rights Commission and the Women and Equalities Select Committee, the Government consulted between 11 July and 2 October this year on whether new third-party harassment provisions should be introduced into the Equality Act 2010. The results of the consultation are awaited.
In the meantime, this recent case has confirmed that, under the current legislation, employees cannot sue their employer for third-party harassment unless the employer’s action or inaction is related to the protected characteristic, such as race.
In this case, Mr Bessong was subject to a serious assault by a patient (“A”) on racial grounds. A threw about eight punches at him and held a pen as weapon, while saying “You f****** black I’m going to stab you now”. The assault was reported to the police and a record of the assault was made by the Trust, although it made no mention of the racist element of the assault. This was in a context where many black staff were employed by the Trust and a perception had formed among them that reporting every single racist incident was pointless.
Mr Bessong brought a number of claims in the Employment Tribunal including harassment on the basis of the Trust’s failure to report properly following the incident. The Tribunal dismissed this claim on the basis that, on the reading of the Equality Act 2010, it had to consider the conduct of the Trust, not the conduct of A. It found that while the Trust’s inaction was “unwanted conduct”, it was not related to the employee’s race and therefore the Trust was not liable.
Mr Bessong appealed to the Employment Appeal Tribunal but lost. The Employment Tribunal held that, even read alongside relevant European Union Directives, the Equality Act 2010 cannot be interpreted so as to impose liability on an employer for third-party harassment against employees, unless the conduct or inaction of the employer is related to race. This was in line with an earlier decision on the point.
Mr Bessong was denied permission to leapfrog his appeal to the Supreme Court, but it indicates that permission to appeal to the Court of Appeal may be sought. If the case does eventually go to the Supreme Court we will have an indisputable authority on the interpretation of these provisions in the Equality Act 2010, although by that point law may already have changed to include protection for third-party harassment.