The Claimant, a Polish man employed as a concierge at a block of flats managed by the Respondent, suffered incidents of third party racist and homophobic abuse. Following an investigation into one of these incidents, he resigned and brought numerous claims in the ET, including constructive unfair dismissal and harassment related to his race and apparent sexual orientation. The ET upheld the claims for constructive unfair dismissal and harassment, finding that the Respondent failed to investigate and to pursue with due seriousness the third party abuse which the Claimant suffered on two occasions. The Respondent appealed on the ground that the ET had erred in law in concluding that the Respondent subjected the Claimant to harassment by failing to react in relation to abuse perpetrated against him by third parties when it had expressly found that the Respondent's failure to act was not, itself, tainted by any discriminatory motive.

The EAT held that the ET did not correctly apply the law as set out in Unite the Union v Nailard [2018] EWCA Civ 1203, a case that was not drawn to its attention, and so the upholding of the harassment claim against the Respondent in respect of the two incidents could not stand and would be set aside. Accordingly, the harassment claim in respect of the two incidents would be remitted to the same ET for reconsideration.