Conteh v Parking Partners Ltd

An employer is not automatically liable for racial harassment because third parties have created a hostile or offensive working environment. Under section 3A of the Race Relations Act 1976, the tribunal must identify the employer’s unwanted conduct, determine whether it had the purpose or effect of creating the proscribed environment, and ask whether the conduct was on racial grounds. Inaction may constitute conduct where action was wanted and the failure to act materially contributes to creating or worsening the environment. Mere failure to remedy an environment created by others is not necessarily sufficient. Direct discrimination requires less favourable treatment because of race, assessed by comparison. An employer’s failure to act is not racial discrimination where the same response would have been made to a complaint by a person of another race.

The claimant, a black African car-park attendant, alleged that staff employed by a business operating at the same site had subjected her to racist abuse and hostility. Her employer did not control those staff. It investigated to a limited extent and introduced arrangements intended to reduce further contact, but did not take several further steps sought by the claimant.

The Employment Tribunal dismissed claims for direct discrimination and racial harassment. It found that the employer would have acted in the same way regardless of the claimant’s race, and that the employer’s omissions had not created or worsened the hostile environment. The claimant appealed, arguing that the racial character of the third-party abuse made the employer’s failure to act inherently discriminatory and that inaction had created the continuing environment.

Appeal dismissed. The Employment Appeal Tribunal accepted the Employment Tribunal’s factual findings, which were not perverse.

1. For a claim under section 3A of the Race Relations Act 1976, the tribunal must identify the unwanted conduct attributed to the employer. Inaction may qualify, but only where action was wanted.
2. The tribunal must then consider whether the employer’s conduct had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment, and whether the conduct was on grounds of race or ethnic or national origins. The focus is on the employer’s motivation and on causation.
3. “Creating” may describe a process occurring over time. Third parties may create an environment in part, while an employer’s conduct makes it worse. Inaction could therefore, in an appropriate case, contribute to creation by actively worsening the employee’s position. Such a conclusion would require cogent evidence. Mere failure to remedy an environment created by third parties is more doubtful.
4. The claimant’s argument that racist third-party conduct made any failure to respond inherently racist was rejected. The relevant question is why the employer failed to act. Here the manager’s reluctance to rock the boat was found unrelated to race or to the racial nature of the complaint. The employer’s steps had also reduced the unpleasant environment.
5. Direct discrimination requires a comparison with treatment afforded, or that would have been afforded, to a person of another race. The Tribunal found that the employer would have shown the same degree of inaction in response to any comparable complaint. The direct discrimination claim therefore failed.

The appeal failed on both grounds.

• Employment Tribunal: reasons delivered on 11 March 2010. Claims for direct discrimination and racial harassment were dismissed.
• Employment Appeal Tribunal: appeal dismissed.