Passive tense: when inaction makes things worse
Inaction, or insufficient action, by an employer who is aware of the repeated racial harassment of an employee by a third party can lead to the employer being liable for that harassment, according to a recent decision of the EAT. This case concerned the Race Relations Act, which has since been repealed, but the principles continue to be relevant – and will be particularly relevant for public sector employers whose employees are likely to come into contact with members of the public who engage in challenging behaviour. Sarah Lamont looks at the detail.
Under section 3A of the Race Relations Act 1976, a person subjects another to harassment where, on the grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of
(a) violating that other person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment.
The Race Relations Act 1976 has now been repealed, but similar provisions are replicated in the Equality Act 2010.
The Equality Act also extends protection from harassment so that employees may bring a claim if they are
In Sheffield City Council v Norouzi, Mr Norouzi, who is Iranian, worked for Sheffield City Council as a residential social worker at a care home. One of the children at the home engaged in extremely challenging behaviour towards Mr Norouzi: she was regularly offensive to him on racial grounds, telling him, for example, that he should “go back to his own country” and, on one occasion, she said that she would like to blow up the whole of Asia and all Asians. She also mocked and mimicked Mr Norouzi’s accent. He was signed off sick from work as a result, and lodged an employment tribunal complaint against the Council, alleging (amongst other things), racial harassment. The Council were aware of the abuse directed at Mr Norouzi, and the employment tribunal found that, by the insufficiency of its response, the Council were liable for the acts of harassment directed at Mr Norouzi. The tribunal followed R (Equal Opportunities Commission) v Secretary of State for Trade and Industry, which held that an employer could be liable for harassment by a third party if their inaction has ‘created’ an ‘intimidating, hostile or offensive environment’, within the meaning of the Race Relations Act, and their inaction is ‘on racial grounds’. Accordingly, the employment tribunal found the Council liable for the harassment of Mr Norouzi. The Council appealed.
Rejecting the Council's appeal, the Employment Appeal Tribunal (EAT) held that the tribunal was entitled to find that the Council was responsible for the acts of racial harassment towards Mr Norouzi, following the reasoning in the EOC case above.
In its appeal, the Council tried to raise a new argument, based on a decision which had been handed down after the original employment tribunal decision: Conteh v Parking Partners Ltd. The Council wished to rely on the EAT’s reasoning, in Conteh, that an employer should only be liable for ‘creating’ a hostile environment where the fact that the employer has done nothing made the situation worse. The EAT, in Conteh was reluctant to conclude that ‘creating’ a hostile environment should include scenarios where the employer could only be criticised for failing to remedy a situation brought about the actions of others for whom the employer is not responsible.
However, the EAT in Norouzi did not allow the Council to rely on the Conteh point because, although the decision post-dated the original tribunal hearing, that did not prevent the Council’s representatives from raising the argument at the original hearing (albeit that it would have been a novel argument, unsupported by case law).
On a side issue, the EAT also rejected the Council’s contention that the mocking of Mr Norouzi’s accent was not racially motivated because the mocking was intended to upset those in authority generally and was not, therefore, linked to race. The EAT gave this argument short shrift and said that to mock a racial characteristic was, “plainly analogous with overtly racial abuse”.
The EAT commented that there may be some tension between the Conteh and EOC decisions, so some uncertainty remains over whether the EAT would have reached a different conclusion, if the Council had been allowed to run an argument based on the reasoning in Conteh. Nevertheless, the position as it stands is that a failure to act can lead to liability for third party harassment if the employer knowingly fails to take reasonable steps to prevent the harassment from occurring.
Note that, since the enactment of the Equality Act 2010, employees now have two causes of action open to them if they are harassed by a third party
This means that it is now more important than ever to ensure that your managers are aware