It is one thing to ask customers and visitors to stub out their cigarettes, but another to tackle them about racist comments or other inappropriate behaviour. In a recent case involving a local authority worker, the Employment Appeal Tribunal (EAT) has had to consider whether failing to tackle racist comments by customers could lead to a finding of unlawful harassment against the employer.

The claimant alleged that the chief executive had been responsible for a policy of not challenging racist comments or behaviour by customers, an allegation which was hotly contested by the local authority. The EAT decided that maintaining such a policy could amount to unlawful harassment under the harassment provisions which were inserted into the Race Relations Act in July 2003. The Employment Tribunal had therefore been wrong to strike her case out as having no hope of success. This case is interesting because it is the first appeal case about these new provisions and illustrates that they can be considerably wider than the old law, under which the employers probably could not have been found liable.