Bessong v Pennine Care NHS Foundation Trust UKEAT/0247/18/JOJ

Appeal against the ET’s decision rejecting the Claimant’s claim of “third-party harassment” related to race. Appeal dismissed.

The Claimant, who worked for the Respondent, was subject to a serious assault and racist abuse by a patient. He brought proceedings in the ET alleging direct and indirect race discrimination and harassment, and his claim of indirect race discrimination succeeded in relation to the Respondent's failure to have a system for comprehensively reporting incidents of racial abuse. However, in relation to the harassment claim, while the ET found that the incident reporting failing represented unwanted conduct on the part of the Respondent, it did not accept that such conduct (in the form of inaction) was "related to" race so as to bring it within the scope of section 26(1) Equality Act 2010 ("EqA 2010"). The Claimant appealed on grounds including that the ET misinterpreted section 26(1) EqA 2010 in requiring that, in a complaint of third-party harassment, the employer's conduct/inaction must itself be related to race.

The EAT held that the Race Directive and, by analogy, section 26(1) EqA 2010 did require an employer's conduct/inaction itself to be related to race in order to give rise to any liability for third-party harassment. It also confirmed that the ET, and now the EAT, was bound by the Court of Appeal decision in Unite the Union v Nailard that an employer has no liability under EqA 2010 for failing to prevent third-party harassment.

http://www.bailii.org/uk/cases/UKEAT/2019/0247_18_1810.html

Published: 22/10/2019 16:01

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