Bessong v Pennine Care NHS Foundation Trust

An employer does not incur liability under section 26(1) of the Equality Act 2010 merely because it failed to prevent racially motivated harassment by a third party. The employer's own unwanted conduct, including an omission, must itself be related to race.

Article 2(3) of the Race Directive does not impose strict or freestanding liability where racial harassment by a third party occurs. The phrase takes place identifies when unwanted conduct related to race amounts to harassment; it does not remove the required relationship between the conduct relied on and race.

Following [2018] EWCA Civ 1203, the repeal of the former express third-party-harassment provisions left no explicit statutory liability for an employer's failure to prevent such harassment.

The claimant, a Black African mental health nurse, was seriously assaulted and racially abused by a patient. The Employment Tribunal found that the Trust's failure to ensure reporting of every racist incident was indirectly discriminatory. It dismissed the harassment claim because the reporting failure, although unwanted conduct, was not itself related to race.

The claimant appealed. He contended that section 26(1) of the Equality Act 2010 had to be read consistently with Directive 2000/43/EC so as to make the Trust liable for foreseeable and preventable third-party racial harassment. The Trust conditionally cross-appealed if that argument succeeded.

The central issue was whether the Race Directive requires liability for third-party harassment without a racial relationship in the employer's own act or omission.

1. Appeal dismissed. The Tribunal made no error of law in dismissing the harassment claim. The conditional cross-appeal therefore did not arise.

2. Article 2(3) of Directive 2000/43/EC requires the unwanted conduct treated as harassment to be related to racial or ethnic origin. Its words takes place do not mean that an employer becomes liable whenever racial harassment by a third party occurs. The Directive applies in several settings, not only employment, and contains no basis for imposing the suggested strict liability on persons who may be unable to prevent third-party conduct.

3. Articles 21 and 31 of the Charter did not enlarge that result. The Recast Directive and the unratified ILO Convention encouraged preventive measures but did not impose liability for an employer's failure to take them where that failure was unrelated to the protected characteristic.

4. Section 26(1) of the Equality Act 2010 could not in any event be interpreted to create that liability. A statutory regime governing responsibility for another's conduct would require careful definition. The former section 40 provisions had supplied such detail, including knowledge of prior incidents; their repeal left no explicit third-party-harassment liability. The EAT was bound by Unite the Union v Nailard, [2018] EWCA Civ 1203.

5. The appeal was not academic. A successful harassment claim could produce materially different remedies and vindication from the successful indirect-discrimination claim. The request for a leapfrog certificate was refused because the proposed construction of Article 2(3) had no real prospect of success.

• Employment Appeal Tribunal: Appeal dismissed: [2019] UKEAT 247_18_1810.
• Employment Tribunal: The claimant's indirect race discrimination claim succeeded on the incident-reporting failure. His direct discrimination and harassment claims were dismissed. Remedy was adjourned.