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Bessong v Pennine Care NHS Foundation Trust

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Last updated 13th November 2019.

This case suggests there may be a claim for indirect discrimination against an employer who does not take adequate action against harassment by third parties such as customers. The employment tribunal held the employer liable as regards its failure to ensure all racial abuse was reported. However this part of its decision was not appealed, and so is not a binding precedent.

Employment Appeal Tribunal (EAT), 2019, www.bailii.org/uk/cases/UKEAT/2019/0247_18_1810.html . Also employment tribunal decision (gov.uk).

Facts

The claimant was a mental health nurse in a secure residential unit for men sectioned under the Mental Health Act. He was subject to a serious assault by a patient accompanied by racist abuse. This included the patient calling him a “f***ing black”. The patient had a history of racist behaviour towards black members of staff. The employer made a record of the assault, but an incident report form made no mention or the racist element.

The nurse claimed against the employer under the Equality Act, saying (broadly) that it had failed to take adequate steps against such harassment. The employment tribunal held the employer was not liable for ‘harassment’ under s.26 EqA as its inaction was not related to race. However it did hold that the employer was liable for indirect discrimination under s.19.

Held by the Employment Appeal Tribunal (EAT): the employment tribunal was right to hold that the employer was not liable for ‘harassment’. (The decision that the employer was liable for indirect discrimination was not appealed, and so stands.)

Indirect discrimination: Employment tribunal decision:

I think this is the most interesting aspect of the decision. However it must be stressed that the tribunal decision on indirect discrimination was not appealed to the EAT. Since it is only an employment tribunal decision, it is not a binding precedent.

Broadly indirect discrimination (s.19 EqA) is where the employer applies a provision, criterion or practice (‘PCP’) to people generally, but the PCP puts people with a protected characteristic (eg a particular racial background or disability), including the claimant, at a particular disadvantage. The employer may be able to show the PCP is justified, but if he cannot then it is unlawful as indirect discrimination.

The main PCP claimed in this case was that the employer had failed to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. The employer required racial abuse to be reported, but not all incidents were. A perception had formed amongst many black staff that reporting every single racist incident was pointless. In consequence the incident report system fell into disrepute in that respect.

The tribunal said there were steps which the employer should have taken to reinforce the message to staff that they should do an incident report after every racist incident. These included:

  • ensuring that patients were made aware that racist incidents were unacceptable, and reinforcing that message in various respects,
  • completing an incident report every time a racist comment was made irrespective of how it came to their attention,
  • providing clear feedback to individuals once it was made,
  • conducting a staff survey, and
  • focusing on racist abuse in staff training.

The tribunal held that the failure to create a culture in which all such incidents were formally reported in that way contributed to an environment in which racial abuse from patients was more likely to occur. A proper approach to this could have made a difference to the exposure of the claimant to this particular incident.

Accordingly the employer was liable for indirect discrimination under s.19 EqA. This was not appealed to the EAT.

Harassment: EAT decision

The EAT upheld the employment tribunal decision that the employer was not liable for harassment under s.26 EqA. It was not enough that the harassment related to race. The employer’s conduct or inaction, here the failure to ensure all racial abuse was reported, had to be related to race. Here it was not.

For more on this see the Court of Appeal decision in Unite the Union v Nailard, which the EAT said it was bound by.

The EAT rejected an argument that the EU Race Directive requires EU member states to outlaw third-party harassment where the harassment is foreseeable and preventable.

The EAT refused permission for a leapfrog appeal to the Supreme Court.

My comments

Where the employer fails to take adequate action against harassment of a worker by a third party, eg by a customer (a patient in this case) or a supplier, the Court of Appeal in Unite the Union v Nailard held that this failure is not harassment under s.26 EqA unless the employer has a discriminatory motivation.

However the present case, Bessong, suggests that even if the employer does not have a discriminatory motivation, it may be liable for indirect discrimination under s.19 EqA.

Firstly, on harassment under s.26, it is not surprising that the EAT in the present case followed the Court of Appeal decision in Unite the Union v Nailard to hold that the employer’s inaction was not harassment because the employer did not have a discriminatory motivation. As held in the Unite case, it was not enough that the harassment itself was related to race (or disability etc).

However the employment tribunal decision in the present case, though not a binding precedent, points up the possibility of claiming indirect discrimination against an employer which fails to take adequate action against harassment by third parties. This would not require the employer to have a discriminatory motivation. The discriminatory practice challenged in the present case was that the employer had failed to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form.

Future cases will need to clarify the position. An issue to be discussed in future cases may be how far a failure to take a particular action (effectively imposing a duty) can be a provision, criterion or practice (PCP) founding a claim for indirect discrimination.

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