Bessong v Pennine Care NHS Foundation Trust UKEAT/0247/18/JOJ
Joanne Connolly is successful in the Employment Appeal Tribunal in defeating an attempt to extend the Equality Act 2010 to include third party harassment.
The Claimant, a black African man, worked as a nurse in a secure residential mental health unit for the Trust. On one occasion the Claimant was assaulted by a patient who also racially abused him. The patient had a history of racially abusing black members of staff. There had been difficulties within the Unit in ensuring that staff completed Incident Report Forms particularly in respect of verbal abuse by patients
The case before the ET
The Claimant's case was that the Trust had directly and/or indirectly discriminated against him in various ways including by failing to ensure that racial incidents were properly reported. This latter claim was also framed as a claim of harassment i.e that the Trust harassed the claimant and/or was responsible for the claimant's harassment by the patient by its inaction in failing to ensure racial incidents were reported.
The Tribunal found that the Trust failed to take all reasonable steps to promote the formal recording of incidents of racial abuse and that this contributed to an environment where racial abuse from patients was more likely to occur.
The Tribunal found that the failures amounted to "unwanted conduct". However, as per section 26 they were not "related to" race (para 12):
"There was nothing in the Respondent’s failure to ensure universal reporting of racist incidents which was related to race other than the subject matter of the failure."
Section 26(1) of the Equality Act 2010 defines harassment as "unwanted conduct related to a protected characteristic" which has the purpose or effect of violating a person’s dignity or "creating an intimidating, hostile, degrading, humiliating or offensive environment for" that person.
Section 40 in its current form states that: "an employer (A) must not, in relation to employment by A, harass a person (B)— (a) who is an employee of A's; (b) who has applied to A for employment."
The previous version of section 40 provided that employees were protected against third party harassment subject to certain conditions (section 40 Equality Act 2010, repealed from 1st October 2013: Enterprise and Regulatory Reform Act 2013).
This provision had been enacted after developments in the caselaw most notably the case involving waitresses being harassed by the employer when serving at an event because of the racist “jokes” of the performing comedian Bernard Manning (Burton and Rhule v De Vere Hotels  IRLR 596,  ICR 1). The focus in the EAT was upon the failure of the employer to remove the waitresses from the event when it became apparent that such racist comments were being made.
Subsequent case law clarified that, before an employer could be liable for inaction in failing to prevent third party harassment:
– the complainant had wanted the employer to take such action / action must have reasonably been required;
– the employer's inaction helped to create an environment that was intimidating, hostile, degrading humiliating or offensive to the complainant; and
– the employer failed to take action on the grounds of race (Conteh v Parking Partners UKEAT/0288/10,  ICR 341,  All ER (D) 223 (Feb); Pearce v Governing Body of Mayfield Secondary School  IRLR 548,  ICR 920).
Since the repeal of section 40, there is no liability on an employer regarding third party harassment expressly provided for within statute.
Article 2(3) of the Race Directive states that discriminatory harassment takes place when "unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment" (emphasis added).
The EAT Appeal
The Claimant's grounds of appeal were as follows:
- The Tribunal misinterpreted s.26 (1) of the 2010 Act in requiring that the employer's conduct/inaction must itself be related to race in a complaint of third- party harassment.
- The Tribunal erred in concluding that the Claimant was not entitled to rely directly on the Race Directive.
- The Tribunal erred in concluding that it was bound to follow and/or in deciding to follow the decision of the EAT in Nailard  ICR 121 (which had been upheld by the CA subsequent to the ET decision).
The Claimant invited the EAT to find that the Race Directive covers third party harassment and that section 26 ought to be interpreted to that effect.
The EAT found that the words "takes place" in the Directive did not require Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer's failures were themselves "related to" race. Mr Justice Choudhury relied on the same words being used in other aspects of the Directive including direct discrimination in Article 2(2)(a) to show that a natural reading could not give effect to the use of those words in the way argued for by the Claimant. Further, it was found that if such an effect had been intended there would have been explicit wording to that effect in the Directive, which there was not (para 38).
A distinction was drawn between aspects of the Directive which sought to impose a liability on employers and those which sought to encourage certain behaviours (para 43).
The EAT also considered whether the EOC case and subsequent history of the enactment of provisions addressing third-party harassment demonstrated that Parliament intended to outlaw third-party harassment and did so because it considered that it was required to do so by EU law (para 50). Mr Justice Choudhury agreed with the decision in Nailard that it did not.
The EAT went on to consider whether an alternative conclusion to the above would have had any effect. Mr Justice Choudhury found that it would not have done so as "s.26 of the 2010 Act is not susceptible to an interpretative exercise that would encompass liability for third-party harassment as it would lead to uncertainty" (para 52). Further, Mr Justice Choudhury quoted from Nailard: the "negligent failure to prevent another's discriminatory acts is a very different kind of animal from liability for one's own: it requires careful definition, and I would expect it to be covered by explicit provision".
The law here is summarised in Nailard and confirmed as settled by Bessong.
The section above from Nailard is often quoted when discussing third party harassment. It cannot be doubted that your own discriminatory acts are different from you not preventing those of another person. However, are they such a "different kind of animal"?
Mr Justice Choudhury's final words on the subject are "Liability for third-party harassment in certain circumstances has much to commend it" (para 57). But, despite that, Bessong provides us with the clear answer that it does not exist under section 26, unless and until the matter is considered again by the CA or there is legislative change.
Interestingly, the current Labour manifesto states that they would make employers liable for third party harassment (Labour Manifesto, see page 61).