Background
Section 3A of the Race Relations Act 1976 (the RRA) (introduced in July 2003) expressly defines harassment on the grounds of race or ethnic or national origin. Prior to the introduction of section 3A, an employee who suffered racial harassment at work had to establish that their treatment constituted a form of direct discrimination under the RRA. Now, however, racial harassment is a separate, stand-alone unlawful act.
Prior to the introduction of section 3A, much of the case law dealt with how harassment claims could be made to fit within the statutory definition of direct discrimination under the Act. For many years it had been accepted that if an employer was in a position to have prevented an act of discrimination against its employee by a third party and hadn’t done so, it would be liable for the discrimination, even where the employer’s failure had nothing to do with the race (or sex) of the employee.
This was confirmed by the EAT in Burton and another v De Vere Hotels Ltd 1997 ICR 937. However, this position was subsequently challenged by the House of Lords in Mcdonald v Ministry of Defence and Pearce v Governing Body of Mayfield School [2003] ICR 937. In Pearce, the House of Lords held that for an employer to be liable for the acts of a third party, it must have had a discriminatory reason for failing to take preventative action. The House of Lords held that Burton had therefore been wrongly decided. However, the House of Lords findings in Pearce predated the introduction of the specific harassment provisions of the RRA.
In Gravell the EAT has considered for the first time the effects of section 3A on the House of Lords’ reasoning in Pearce.
Facts
Ms Gravell (G), a white woman of British national origin, was employed by Bexley Council Housing Department (the Council) as a Prevention and Advice Officer from June 2001 to January 2007. She alleged that she had been told that it was the Council’s policy to ignore racist comments from customers and she was not allowed to tell customers that such comments were unacceptable.
In September 2005, G was at court with a customer who used the expression ‘paki’ on a number of occasions which had upset and distressed G. In October 2005 she received text messages from a work colleague which contained racist jokes. G claimed that she had brought these acts to the attention of the Council, but they had ignored them.
G brought a number of claims in the employment tribunal. She made two specific allegations of racial harassment relating to the incident at court involving the use of the word ‘paki’ by a third party and the sending of text messages by her colleague. Both of these claims were struck out. The tribunal (chairman sitting alone) struck out the racist comment by a third party claim on the basis that the House of Lords in Pearce had disapproved the EAT’s decision in Burton and therefore it was highly unlikely that G would succeed in bringing a complaint against the Council in relation to the acts of a third party. G appealed to the EAT.
EAT Decision
The EAT allowed the appeal and reinstated the claim of harassment. The EAT considered the House of Lords comments in Pearce in light of specific harassment provisions under the RRA. It held that if it was established that there had been a policy of ignoring racist remarks by the Council, harassment would be made out for the purposes of section 3A. The House of Lord’s arguments in Pearce did not preclude an employer from liability for harassment by a third party under section 3A of the RRA. In fact, a policy of not challenging racist remarks could in itself constitute racial harassment.
Comment
Employers should make sure that their work place policies are sufficiently well drafted and operate effectively so as not to allow an intimidating work environment to occur. If such an environment does develop, even where it is due to the acts of third parties, this situation in itself could amount to harassment for the purposes of section 3A of the RRA and the employer could find itself liable.