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Employer not liable for third party harassment as inaction not related to race

Makbool Javaid

In Bessong v Pennine Care NHS Foundation Trust, B, a mental health nurse was seriously assaulted by a patient accompanied by racist abuse, i.e. “You f*****g black I’m going to stab you now”. An ET upheld B’s indirect discrimination claim because the incident reporting system had fallen into disrepute and the Trust should have taken steps to reinforce the message that all incidents should be reported. The ET, however, rejected B’s harassment claim because the employer’s failings (their conduct) were not themselves related to race. In upholding the ET’s decision, the EAT rejected B’s argument that S.26 (1) of the Equality Act 2010 should be interpreted in line with the EU Race Directive to impose liability on an employer for third-party harassment without any requirement that the employer’s failings themselves had to be related to race. The EAT held that the Directive requires that an employer’s conduct/inaction be itself related to race in order to give rise to any liability. In any event the Court of Appeal in Unite the Union v Nailard had confirmed that there is currently no explicit liability under the EA 2010 on an employer for failing to prevent third-party harassment.

The updates are kindly provided by Simons Muirhead & Burton Law firm

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and help judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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