Employer not liable for failing to prevent harassment

The Equality Act 2010 provides that it is against the law to discriminate against anyone because of certain 'protected characteristics', one of which is race discrimination.  Another NHS Trust has found itself on the receiving end of an employment claim.

An NHS worker was subjected to a serious assault and to racist abuse from a patient.  He brought proceedings for direct and indirect race discrimination and harassment. His claim for indirect race discrimination was successful because it was found that the NHS Trust did not have a comprehensive system in place for reporting occasions of racial abuse.

However, the harassment claim failed. The basis of the application was that the employer had failed to take steps to prevent the racial abuse suffered by the employee. The Employment Appeal Tribunal held that the employer was not liable for the third-party harassment. The employer cannot be liable for failing to prevent third party harassment of its employees in the workplace unless the employer's own conduct or lack of action itself amounts to harassment relating to a protected characteristic.

It is worth noting that the government is currently consulting on whether third party harassment provisions should be reintroduced into the Equality Act so this position might change in the future.

The case is an important reminder to employers that they should encourage formal reporting of all racist abuse. Proper feedback should be given when the report is made and staff should have appropriate training to ensure that they understand that racial abuse in any form is unacceptable in the workplace.

To discuss this or any other employment related issue, contact us.

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