BDW Trading Limited v Kopec

For harassment under section 26(1)(a) of the Equality Act 2010, an employer’s unwanted conduct must itself be related to the protected characteristic. An employer which lacks discriminatory motivation does not incur harassment liability merely because it failed to prevent or respond adequately to discriminatory abuse by third parties.

Where a tribunal has applied the wrong legal approach, its finding must be set aside. It does not necessarily follow that the claim must be dismissed. A remittal may be required where the tribunal considered motivation only through the different framework for direct discrimination, used a hypothetical comparator, and did not address the burden of proof for harassment.

The claimant, a Polish concierge, was racially and homophobically abused by third-party delivery personnel. The Employment Tribunal found that the employer had failed to take the abuse seriously, investigate it properly, or protect the claimant. It upheld parts of his harassment claims and also upheld his constructive unfair-dismissal claim. It dismissed the direct discrimination claims, finding that the employer’s officers would have treated a hypothetical comparator in the same way and lacked discriminatory motivation.

The employer appealed the successful harassment findings. The central issue was whether an employer’s non-discriminatory failure to prevent or address third-party discriminatory abuse could itself amount to conduct related to race or apparent sexual orientation under section 26 of the Equality Act 2010.

1. Appeal allowed. The Tribunal’s findings that the employer harassed the claimant in relation to the two incidents of racist and homophobic third-party abuse were set aside.

2. Applying Unite the Union v Nailard [2019] ICR 28, section 26(1)(a) of the Equality Act 2010 requires the alleged harasser’s unwanted conduct to be related to the relevant protected characteristic. The phrase “related to” does not make an employer liable for discriminatory conduct by third parties merely because the employer, while itself innocent of discriminatory motivation, could have prevented it.

3. The Tribunal had found harassment because the employer failed to take the third-party abuse seriously, investigate it, and prevent it. That was an erroneous legal basis for liability in the absence of a finding that the employer’s own conduct had discriminatory motivation. Its harassment findings therefore could not stand.

4. The Employment Appeal Tribunal declined to substitute dismissal of the harassment claims. Although the Tribunal’s direct-discrimination findings appeared to exonerate the employer’s officers from discriminatory motivation, it had approached that issue under the direct-discrimination framework. Harassment has differently worded statutory provisions, does not require a comparator, and requires application of the section 136 burden-of-proof provisions.

5. The successful parts of the harassment claim were remitted to the same Tribunal for reconsideration in the light of this judgment and Nailard. The constructive-dismissal finding was unaffected.

• Employment Appeal Tribunal: Allowed the employer’s appeal, set aside the successful harassment findings, and remitted those claims to the same Employment Tribunal.
• Employment Tribunal, London Central: Reserved judgment dated 15 January 2019, sent to the parties on 29 January 2019. It upheld the constructive unfair-dismissal claim and parts of the race- and apparent-sexual-orientation harassment claims, while dismissing the direct discrimination claims.