The rule established in the famous ‘Bernard Manning case’ that employers can
be liable for acts of discrimination by non-employees has had its teeth removed
by the House of Lords.
Commenting in a recent discrimination judgement, the Lords sought to limit
the effect of the Burton v De Vere Hotels case of 1996, where the owners of a
hotel were found liable for discrimination of black waitresses who suffered
while staffing an event at which the comedian told racist jokes.
The EAT ruled in that case that employers may be liable for the actions of
third parties outside their employment where they have some control over
whether the harassment is allowed to continue and they do nothing about it.
This principle has since been relied on in other claims.
Now the House of Lords has said employers will only be liable for acts of
sexual or racial harassment by a third party if it fails to take steps to
prevent or stop the harassment because of the employees’ sex or race.
"If this is correct, there is a much higher standard of proof than had
been thought for someone seeking to show that an employer is liable for
discriminatory acts by third parties," said Adam Turner of Lovells.