December 1, 2019
Facts of the case
In Bessong v Pennine Care, the Claimant worked as a mental health nurse for the Respondent and was a black person of African origin. The Claimant was a victim of a racial assault which involved physical and verbal abuse by a patient who had a history of abusive behaviour.
The Claimant brought a claim for harassment against the employer under the Equality Act.
The Claimant believed that the employer had failed to take adequate steps against harassment and the failure had contributed to an environment, in which racial abuse from patients was more likely to occur, amounting to unwanted conduct.
The claim was dismissed as the Employment Tribunal were not satisfied that the unwanted conduct ‘related to’ race, which is a requirement for harassment under the Act. The Claimant appealed to the EAT.
The Claimant’s appeal was dismissed by the EAT and the original decision was confirmed.
The employer was not held liable for the racial harassment by the patient. It concluded that because the failure to take adequate steps to prevent the harassment was not because of race, the employer was not liable for harassment.
What does this mean?
An employer will not necessarily be held liable for third party harassment against employees where the conduct or inaction is unrelated to race (or a protected characteristic).
Employers are, however, under an obligation to prevent harassment and forms of discrimination, especially where it is brought to their attention and clear policies and regular training can be useful in addressing third-party harassment. Inaction may result in other claims, such as constructive dismissal.
This may be an area for legislative development in the future, especially following the high profile #MeToo movement and the government’s recent consultation on the proposals to reintroduce third party harassment provisions in the Equality Act. The outcome of the consultation is still pending.