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Case law: Employer’s lack of reporting system for racial abuse of employees by third parties was not harassment

Employers should review their policies and procedures to ensure they safeguard employees against harassment by third parties; or where they fail to do so, ensure that failure is not ‘related to’ a protected characteristic such as race, gender or disability.

December 2019

This update was published in Legal Alert - December 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A patient attacked a nurse in a secure mental health unit because of his race. He brought claims against his employer, including one of harassment, arguing that the fact the employer had no procedure for reporting racial abuse of workers by third parties such as patients created a hostile working environment for employees like him.

The Employment Appeal Tribunal rejected the claim on grounds that the employer's conduct was not itself race-related. It would only have been liable for harassment if the reason for its conduct (in this case, its failure to implement a procedure for reporting racist incidents) was because of the employee’s race.

It pointed out that EU laws do not require member states to make employers liable for foreseeable harassment of their employees by third parties generally, and the UK had not chosen to do so of its own accord.

The same reasoning also applies to harassment by third parties based on other protected characteristics – age, gender, disability etc. However, the government has recently consulted on changes to the law on sexual harassment in the workplace, and there are indications it intends to bring in new laws protecting employees from sexual harassment in the workplace by third parties.

Operative date

  • Now

Recommendation

  • Employers should review their policies and procedures to ensure they safeguard employees against harassment by third parties or, where they fail to do so, to ensure that their failure is not ‘related to’ a protected characteristic such as an employee’s race, gender or disability.

Case law: Bessong v Pennine Care NHS Foundation Trust UKEAT/0247/18/JOJ

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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