Sheffield City Council v Norouzi

An employer may be liable for third-party racial harassment where, having sufficient notice of continuing conduct, it fails to take reasonable and identifiable steps that could reduce the harassment or protect the employee from its effects. Liability does not arise automatically from the third party’s conduct, particularly where harassment is a hazard of the working environment.

A tribunal must identify the protective action which could have been taken. Its reasons may be read in the context of the parties’ submissions. Conduct directed at a racial characteristic, such as mocking a foreign accent, is on racial grounds even if the perpetrator’s underlying purpose is simply to upset the employee.

The claimant, an Iranian residential social worker employed in a home for troubled children, experienced repeated racial abuse and mocking of his accent from a child resident. He alleged that the Council failed to investigate, challenge or remedy the conduct, and failed to provide adequate support.

An Employment Tribunal upheld claims of indirect racial discrimination under section 1 (1A) and harassment under section 3A of the Race Relations Act 1976. It found that, although the Council’s earlier response was adequate, by February 2008 it had sufficient notice to require a more proactive response. The Council appealed, challenging delay in the Reasons, factual findings, the racial character of the accent-mocking, and seeking to raise a point based on [2011] ICR 341.

1. Appeal dismissed. The Tribunal was entitled to find that, from February 2008, the Council had sufficient notice of the claimant’s difficulties and had failed to take the more proactive action then required. Its Reasons, read with the parties’ submissions, adequately identified the omitted measures: addressing incidents with the claimant, providing support and guidance, and working with the resident to modify her conduct.

2. Where liability is based on an employer’s failure to protect an employee from third-party harassment, the tribunal must identify steps the employer could have taken and determine that they could have prevented or reduced the discrimination. An employer is not automatically liable for harassment which is a risk of the work. The Tribunal had made the necessary fact-sensitive assessment and confined liability to the final period, after the Council had been put on notice.

3. The Tribunal’s finding about the continuing mockery of the claimant’s foreign accent was legally sound. Mocking a racial characteristic is analogous to overt racial abuse. The perpetrator’s ulterior purpose of provoking or upsetting staff did not prevent the conduct from being on racial grounds.

4. The lengthy delay in supplying written Reasons was regrettable, but it was not an independent ground of appeal. Such delay will justify appellate intervention only exceptionally, and the parties had received the decision promptly.

5. The Council could not amend its appeal to rely for the first time on the restricted circumstances in which inaction might create a hostile environment discussed in [2011] ICR 341. That point had not been advanced below and no exceptional basis justified its introduction on appeal. Any tension between that decision and [2007] ICR 1234 was therefore not determined.

• Employment Appeal Tribunal: dismissed the Council’s appeal and upheld the liability decision.
• Employment Tribunal, Sheffield: upheld the claimant’s claims of indirect racial discrimination and racial harassment. The formal judgment was sent on 16 December 2009; written Reasons followed on 7 June 2010.