While employees are in the thick of Christmas parties, employers are busy reinforcing the usual rules about expected behaviour. Throw alcohol and seasonal exuberance into any scenario and things stand to get over-heated, in one way or another.
Harassment will be a particular concern for organisations. The #MeToo movement has sharpened the focus on the insidiousness of unwanted conduct at work (Christmas parties are usually an extension of ‘work’), and employers will be keen to make sure that everyone understands the boundaries of acceptable behaviour towards colleagues – whether in the office or on the dance floor.
But it is not just unwanted conduct by employees that employers should be guarding against. Third parties, such as customers and clients, can be responsible for creating an intimidating, hostile, degrading, humiliating or offensive environment for your staff. It is always good practice, and part of an employer’s duty of care, to try to prevent this from happening. That is the case, even though it’s more difficult than it once was for employers to be found liable for the behaviour of third parties.
A recent case (Bessong v Pennine Care NHS Foundation Trust) illustrates this principle, in the context of racial harassment. Mr Bessong, a black African mental health nurse suffered assault and racial abuse at the hands of a patient and went on to bring a number of race-related claims.
He won his claim for indirect race discrimination (the employer had failed to create a culture in which racial incidents were properly reported, contributing to an environment in which racial abuse was more likely to happen), but lost on harassment.
The employer’s failure to create a reporting culture was found to be ‘unwanted conduct’, but it was not related to race. Whilst the conduct of the harasser clearly was, it could not be said that the inaction on the part of the employer to ensure universal reporting of racial incidents was also related to Mr Bessong’s protected characteristic.
Things might have been different, had the provisions on third-party harassment set out in the Equality Act 2010 not been repealed six years ago. Under the old law, an employer could be liable for harassment by a third party if the organisation:
- had failed to take reasonably practicable steps to prevent the harassment; and
- knew that the employee had been harassed in the course of their employment on at least two previous occasions by a third party, whether by the same third party or not.
Since those provisions have been taken out of the statute book, an employee who wants to pin liability for third-party harassment on their employer now needs to win the argument that the things the employer did or didn’t do to protect him or her from harassment were also motivated by the relevant protected characteristic.
That is, unless the employee can show that it was the employer itself that had created the ‘intimidating, hostile, degrading, humiliating or offensive environment’ for the individual. This is necessary in order to establish harassment under the general harassment provision in the Equality Act 2010.
Points to take away
While this current legal position on third-party harassment will be viewed favourably by employers, it should not lessen efforts to keep employees safe and free from unwanted conduct. The treatment Mr Bessong received was clearly unpleasant. Any harassment, whether by colleagues or third parties, should be addressed, and the organisation’s zero-tolerance of unacceptable behaviour made clear. A well-worded and well-communicated harassment policy is a must.
With calls for third-party harassment provisions to be reinstated in some form or another, employers may in the future face direct legal consequences, if they fail to adequately protect employees from particular behaviour. While any new legislation and accompanying guidance would set out the specific obligations and duties in that respect, my view is that employers who continue to take all reasonable steps to actively promote decent behaviour should have nothing to fear from any new potential liability.