The Claimant in the case of Bessong v Pennine Care NHS Foundation Trust worked as nurse on a ward for adults with serious mental health issues. On 7 April 2017, the Claimant, who is black African, was subjected to racially motivated physical and verbal abuse by one of his patients, who had a long history of abusive behaviour.
The following month, the Claimant raised a grievance, stating that hate crimes were being committed against staff on a daily basis and were going unpunished. Furthermore, he alleged that the Pennine Care NHS Foundation Trust (“the Trust”) had failed to safeguard black staff members as a result of its inadequate incident reporting systems.
The Claimant’s grievance and appeal were unsuccessful on the grounds that:
- staffing levels on the night of the incident had met current requirements;
- the Claimant’s incident report had not explicitly referred to the racist motivation for the attack;
- no staff members had said that they had ever been discouraged from reporting racist incidents;
- there was evidence that the Unit Manager of the Ward had challenged racist abuse when it occurred; and
- information about the patient’s history had been available in nursing notes provided to the Claimant.
The Trust did, however, commit to improving its communication with staff regarding the responsibility to report verbal abuse and assaults.
The Claimant brought a claim in the Employment Tribunal alleging direct and indirect race discrimination and harassment on the basis that the Trust had not protected its ethnic minority staff from racist abuse and assault. The Claimant’s claim of indirect race discrimination was upheld, as the Tribunal found that the practice of staff not always reporting incidents of racial abuse and the Trust’s tolerance of “low levels” of racial abuse were not proportionate means of achieving the Trust’s legitimate aims of delivering care to patients and mental health services in accordance with its contract and the Mental Health Act. However, the Claimant’s claims for harassment and direct race discrimination were dismissed. In relation to the claim of harassment, the Tribunal found that “there was nothing in the respondent’s failure to ensure universal reporting of racist incidents which was related to race other than the subject matter of the failure.”
The Claimant appealed this decision on the grounds that the harassment provisions in s.26 of the Equality Act 2010 should be interpreted so as to ensure that employers are liable for third-party harassment against employees. The EAT dismissed the appeal, finding that whist the appellant had been indirectly discriminated against, the employer’s failings were not themselves related to race.
What does this mean for your or your business?
Although the employer in this case was not liable for the harassment experienced by its employee, businesses must take employee safety seriously. Employers have a duty of care, and ACAS advises that “an employer can be deemed to have breached their duty of care by failing to do everything that was reasonable in the circumstances to keep the employee safe from harm”.
As this case demonstrates, acts of third-party harassment, as well as the employer’s failings, must relate specifically to a protected characteristic (i.e. age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation). Failure to address these types of harassment can leave employers open to tribunal claims.
What do you need to be doing now?
The Equality Act 2010 stipulates that employers can be liable for third-party harassment if:
- harassment has occurred on two previous occasions (this does not have to be from the same party);
- the employer is aware that the harassment has taken place; and
- no reasonable steps have been taken to prevent the harassment from taking place again.
Employers should ensure that their harassment policies address third-party harassment and should take steps to prevent harassment where it is brought to their attention.
The employment appeal tribunal judgment is available HERE.
Chris Aldridge's article "It wasn't me" also explains liability for acts of third parties.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.