UK: Vicarious liability – third party harassment
Mr Bessong, a black mental health nurse, sustained a significant facial injury during an attack by a patient. Although the NHS Trust’s incident report form made no mention of racism, it later emerged that the patient had a history of racist behaviour towards black members of staff.
The EAT ruled that the NHS Trust was not liable for the racial harassment of Mr Bessong by a patient, because its failure to take adequate steps to prevent racial harassment in the workplace was not related to race.
Practical point
There was some controversy around the removal of the third-party harassment provisions from the Equality Act, particularly in light of the extent of third-party sexual harassment at work that has come to light under the #MeToo movement, and it seems likely that employer’s liability for harassment by third parties will be re-introduced at some stage.
Regardless of whether this may change in the future, there are a number of steps that employers can take to help tackle harassment of their staff by third parties, including:
- having a well-publicised harassment policy, that makes clear that allegations of harassment of staff by third parties will be taken seriously and appropriate action taken in relation to them
- ensuring that managers and HR are trained on how to deal with allegations of harassment so that they are addressed effectively and handled sensitively for everyone concerned
- setting the right tone and culture in your organisation, so that employees feel able to raise concerns and everyone understands what behaviour is appropriate and acceptable.
For a detailed update on this decision, see Will third-party harassment laws be strengthened? If so, what will this mean for employers? https://www.clydeco.com/blog/the-hive/article/will-third-party-harassment-laws-be-strengthened-if-so-what-will-this-mean
Bessong v Pennine Care NHS Foundation Trust https://assets.publishing.service.gov.uk/media/5da9d3f140f0b659831e099c/Mr_Colleridge_Bessong_v_Pennine_Care_NHS_Foundation_Trust_UKEAT_0247_18_JOJ.pdf
