Employers' liability for racial harassment by a third party

The EAT case of Gravell v London Borough of Bexley has held that an employer could be liable for racial harassment by a third party under the statutory tort of racial harassment pursuant to s.3A of the Race Relations Act 1976 (RRA), as amended.

Background

As a general rule, employers are not liable for the acts of people they do not employ. The House of Lords in the case of Pearce v The Governing Body of Mayfield School (2003) held that an employer could only be responsible for third party acts of discrimination if, in exposing the employee to such acts, it had treated the employee less favourably on racial grounds.

Shortly after the decision in Pearce, the RRA was amended to explicitly provide (in section 3A) that harassment on the grounds of race is unlawful. The EAT has now considered the provisions of section 3A.

Facts

Mrs Gravell was employed as a prevention and advice officer in the local authority’s housing department. Mrs Gravell brought a racial harassment claim under the RRA alleging that throughout her employment she had had to listen to racist comments made by customers that she found offensive and that this created a hostile environment. Furthermore, because it was the Council’s policy to advise its employees to ignore racist comments from customers, she had been unable to mention to her employer the comments that she had had to put up with.

Impact on employers

The lesson for employers from this case is that if employees are in a situation where they are exposed to discriminatory conduct by third parties (whether on grounds of race, sex or any other unlawful ground) they should be permitted, if not encouraged, to report such conduct in order to allow the employer to take steps to prevent or reduce such harassment. If they are not reported or the employer does not take such steps, the employer may be liable under the RRA.