Racist assault on staff member was not harassment, rules EAT (Bessong v Pennine Care NHS Trust – UKEAT/0247/18/JOJ)

In the case of Bessong v Pennine Care NHS Trust UKEAT/0247/18/JOJ the Employment Appeal Tribunal (“EAT”) considered whether the Employment Tribunal had been correct to dismiss an employee’s direct discrimination and harassment claims.

The facts in Bessong v Pennine Care NHS Trust

Mr Colleridge Bessong (the ‘Claimant’) was a mental health nurse working for Pennine Care NHS Foundation Trust (the ‘Respondent’) in a secure residential unit for men sectioned under the Mental Health Act. The Claimant was a black African.  He was subjected to a serious assault by a patient accompanied by racist abuse which included the patient calling him a “f***ing black” and stating, ‘I’m going to stab you now’. The patient had a history of racist behaviour towards black members of staff. The Respondent made a record of the assault, but an incident report form made no mention of the racist abuse.

The Claimant then raised a grievance about the incident the following month, stating that hate crimes were being committed against staff on a daily basis and were going unpunished by the Respondent. He also alleged that the Respondent had failed to safeguard black staff members as a result of its inadequate incident reporting systems.

The Claimant’s grievance was not upheld, and he went on to make claims in the Employment Tribunal (‘ET’) of direct and indirect race discrimination and racial harassment.

Employment Tribunal

The ET did not uphold the Claimant’s claims of harassment and direct discrimination because the Respondent’s failings (not ensuring that all incidents of racial abuse were reported by employees) were not themselves related to race.  However, it did hold the Respondent liable for indirect discrimination. 

It found that the failure to create a culture in which all racist incidents were formally reported contributed to an environment in which racial abuse from patients was more likely to occur. A perception had formed amongst many black staff that reporting every single racist incident was pointless.  The ET held that the failure to create a culture in which all such incidents were formally reported contributed to an environment in which racial abuse from patients was more likely to occur.

The Claimant appealed the ET’s decision to not uphold his direct discrimination and harassment claims to the Employment Appeal Tribunal (the ‘EAT’).

Employment Appeal Tribunal

The Claimant’s appeal to the EAT focussed on the following points:

• In interpreting section 26(1) of the EqA 2010 to require that an employer’s action or inaction must itself be related to race in a complaint of third-party harassment.
• In holding that he was not entitled to rely directly on the EU Race Directive.

The EAT upheld the ET decision that the Respondent was not liable for harassment under s.26 EqA. It was not enough that the harassment related to race. The Respondent’s action or inaction had to be related to race and on the facts of this case it was not.

The EAT also considered whether the EU Race Directive requires Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer’s failures were themselves “related to” race.  It held that this could not be the case as, if it were, the impact would be to create a situation of strict liability for employers whereby they would be liable for acts of third-party harassment, irrespective of any motivational element relating to race on its part. 

Our solicitors’ views on the case of Bessong v Pennine Care NHS Trust UKEAT/0247/18/JOJ

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comments on the case: “Previously under section 40 of the EqA 2010 there were provisions in place to make employers liable for third party harassment.  Their removal in 2013 was controversial at the time and the need for protection for employees has been highlighted by the MeToo movement which has uncovered the extent of harassment in the workplace.  The Equality and Human Rights Commission and the Women and Equalities Select Committee have both called repeatedly for third-party harassment provisions to be reinstated in the EqA 2010 and a government consultation on whether new third-party harassment provisions should be introduced has just been completed so watch this space.’

The decision of the Employment Appeal Tribunal in Bessong v Pennine Care NHS Trust UKEAT/0247/18/JOJ can be found here.