Gravell v London Borough of Bexley
In Gravell v London Borough of Bexley, the Employment Appeal Tribunal (EAT) considered whether an employer can be liable to an employee for racial harassment by a third party.
Background In 2003, a separate definition of harassment was added to the Race Relations Act as an additional form of complaint, in addition to direct discrimination, indirect discrimination and victimisation. Unlike these classic forms of discrimination, in a harassment complaint it is not necessary to identify a comparator – that is, someone else to whom the racial basis for the treatment does not apply. Instead, harassment as a ground for complaint concentrates only on the alleged act of harassment being unwelcome to the claimant, and its effect being intimidating, degrading or offensive. Before the 2003 amendment, the relevant case law looked at harassment as a form of direct discrimination.
Burton v De Vere Hotels concerned two waitresses at a private function at their employer’s hotel, where Bernard Manning was performing his stand-up routine. They successfully argued that the employer had directly discriminated against them by failing to protect them against Manning’s racist gags.
However, in Pearce v Mayfield School, the House of Lords remarked that Burton had been wrongly decided, because there was no racial reason for the employer’s conduct.
Now, in Gravell, the same issue has arisen again in the EAT, but as a harassment claim rather than one of direct discrimination.
Facts Patricia Gravell worked in Bexley Council’s Housing Department, and made a number of complaints. Among these were that she had been told at induction that the department’s policy was to ignore racist comments from customers and not to challenge them so she had to listen to customers using language she found racially offensive – and this was racial harassment, for which she said her employer should be responsible.
Decision The EAT held that in a harassment complaint, the acts complained of do not themselves need to be discriminatory, because they can apply equally to everyone, and there is no need to identify “less favourable treatment”. Most people who overhear someone using racist language in the workplace would find it offensive, whatever their racial background. If the employer does nothing about it – as in the case of Bexley’s supposed policy to ignore it – that intransigence can be unwanted conduct creating an offensive atmosphere, and that would make the employer liable for harassment arising from the third party’s conduct. The case was remitted to the tribunal to decide whether, on the facts, the employer was actually liable.
KEY IMPLICATIONS
- Employers may be liable for acts of harassment by third parties – not only on racial grounds, but also on the grounds of sex, disability, sexual orientation, religion or belief, and age.
- A policy of ignoring harassment by outsiders will not work. Positive action must be taken to combat it whenever it becomes apparent.
- Equality and diversity policies must cover harassment, whatever its source. A zero tolerance policy would be the best option.
- Staff may also be able to gain an injunction under the Protection from Harassment Act to force the employer to introduce steps to combat the harassment. This has not yet been used, but Huntingdon Life Sciences won an injunction in 2003 to protect its staff against harassment by an animal rights organisation.
Justin Beevor, legal director, Addleshaw Goddard
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