RACE DISCRIMINATION – Harassment, Third-Party Harassment
The issue in this appeal is whether s . 26 (1) of the Equality Act 2010 (‘the 2010 Act’) should be interpreted so as to impose liability on an employer for third-party harassment against employees. The Claimant worked as a mental health nurse and was assaulted by a patient on racial grounds. Whilst the Tribunal found that as a result of various failures on the part of the employer, including a failure to ensure that all incidents of racial abuse were reported, the Claimant had been indirectly discriminated against, it rejected the Claimant’s claim of harassment because the employer’s failings were not themselves related to race. On appeal, the Claimant argued that s.26(1) of the 2010 Act should be construed in accordance with Directive 2000/43/EC (‘the Race Directive’) under which it is sufficient for liability to arise where the act of harassment ‘takes place’ without any requirement that the employer’s failings themselves had to be related to race.
Held : Dismissing the appeal, that on a proper construction of the Race Directive there is a requirement for the unwanted act (in this case, the employer’s failings) to be related to race and the words ‘takes place’ in Article 2(3) of the Race Directive do not give rise to the interpretation for which the Claimant contends. The EAT is in any event bound by the decision of the Court of Appeal in Unite the Union v Nailard [2019] ICR 28, which confirms that there is currently no explicit liability under the 2010 Act on an employer for failing to prevent third-party harassment.
Citations:
[2019] UKEAT 0247 – 18 – 1810
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 02 September 2022; Ref: scu.642766
