Legal update: third-party harassment

Prior to October 2013 employers were in breach of the Equality Act 2010 if they failed to take reasonable steps to prevent third-party harassment in the workplace when they were aware it had taken place on at least two occasions. 

Unfortunately, those express provisions were repealed by the government in 2013. The RCN is seeking to clarify that protection remains in the case of Bessong v Pennine Care NHS Foundation Trust.

Mr Bessong is a registered mental health nurse who was assaulted at work on racial grounds by a patient who had a history of racist behaviour towards black members of staff.

His assault was reported to the police and Mr Bessong began proceedings in the Employment Tribunal claiming direct race discrimination, indirect race discrimination and harassment. His indirect race discrimination claim succeeded but his other claims did not.

The Employment Tribunal held that the employer’s failure to protect Mr Bessong from this form of harassment was not related to his race.

The RCN appealed this and argued on behalf of Mr Bessong that the Equality Act should be construed in accordance with the European Race Directive.

The European Race Directive is European law that establishes liability when harassment takes place without any requirement that the employer’s failings need to be related to race.

Unfortunately, the Employment Appeal Tribunal disagreed with that analysis and confirmed that due to the changes made to the Equality Act in October 2013, there is currently no explicit liability in the UK for employers who fail to prevent third-party harassment.

The RCN has requested permission to appeal this decision to the Court of Appeal because of the substantial damage this type of harassment is having on our members and we will provide further updates regarding this case in due course.

Joanne Galbraith-Marten
RCN Head of Legal (Employment)