Guard against race bias to avoid costly claims

Two cases spell out the dangers to employers of not taking preventative steps in advance of discrimination

Employers may be liable for racial harassment even where the acts reported have not being carried out by their employees.

According to section 3.2 of the Race Relations Act 1976 an employer is liable for the discriminatory acts of its employees and agents, unless it has taken all reasonable steps in advance to prevent that sort of conduct. Similar provisions exist in the sex and disability legislation. But does an employer also have a duty to take steps to protect employees from actions or comments made by third parties?

In the case of Burton and Rhule v De Vere Hotels 1996, two black waitresses claimed they had been racially discriminated against by their employer. The hotel management failed to take steps to stop them being exposed to racist abuse by comedian Bernard Manning and members of his audience at a function in the hotel. The issue was whether the employer could be liable for the abuse under the Race Relations Act even though neither Manning nor his audience were hotel agents or staff.

It was held that the hotel was guilty of racial discrimination. The fact that the employer itself was not racially motivated was not important. The crucial factor was that the abuse had taken place at an event that was under the hotel’s control, and that it could have prevented, or at least reduced, the harassment.

This principle has most recently been put to the test in the case of Bennett v Essex County Council [2000] IDS Brief 666. Bennett was employed at Fryern school from January 1995, where she was the only black teacher. The school had a number of pupils with behavioural problems and during the first four months of her employment Bennett was subjected to a number of incidents of racial abuse by them.

The incidents were reported to the head of humanities who prepared letters to parents of five of the pupils. However, the headmaster instructed that the letters were not to be sent because the school had previously encountered difficulties in gaining support for disciplinary sanctions from parents. The incidents stopped in April 1995, but a year later further incidents of racial abuse were reported and the parents were then contacted immediately. Nonetheless, Bennett claimed race discrimination.

The Employment Appeal Tribunal found that the original incidents were not treated as seriously as they should have been, that no policy had been devised to deal with the complaints and that the school’s response to the complaints was muddled. They were therefore satisfied that the employer had not taken all reasonably practicable steps to prevent Bennett from being subjected to racial harassment by the pupils.

The fact that later incidents were dealt with promptly was irrelevant, and even taking into account the difficulties the school had in controlling these particular pupils, the EAT still found it was liable for racial harassment.

What reasonable steps could the employer have taken to escape liability? In the Burton case the waitresses could have been taken off duty. In the Bennett case, the school should have written regardless of possible parent reaction.

By Sue Nickson, partner and head of the Employment Law Unit at Hammonds Suddards Edge