The Employment Appeal Tribunal (“EAT”) has recently held that a council was responsible for acts of racial harassment carried out against one of its employees by a child in its care on the basis that it had not done enough to protect the employee.

In the case of Sheffield City Council v Norouzi the Claimant, who was of Iranian origin, worked as a residential social worker at a home for troubled teenagers run by the Council. Between July 2006 and June 2008 one of the children at the home regularly made racially offensive comments to the Claimant and mocked his accent. The Claimant went off work sick, never to return to that job, and subsequently brought claims for racial harassment and indirect race discrimination against his employer under the Race Relations Act 1976, the legislation then in force. The Claimant’s claim was essentially that his employer had taken insufficient steps to protect him from the harassment by the child.

Before the Employment Tribunal, the parties accepted that the actions of the child satisfied the definition of harassment and that the Council, as an emanation of the state, could be liable under the Race Directive for failing to take action where there is a continuing course of offensive conduct which the employer knows of but does nothing to guard against. The essential debate on liability centred around the question of whether the employer had done enough to protect its employee. The Employment Tribunal concluded it had not and was therefore liable to the Claimant.

The Council appealed against this decision. On considering the appeal, the EAT accepted that there are certain environments including prisons and care homes where employees may be subjected to discrimination which cannot easily be prevented by the employer and that, in such cases, employers should not be held liable for the conduct of third parties too readily. For liability to be attributed to an employer a Tribunal must be able to point to what the employer could have done to prevent the conduct and then consider whether the steps actually taken were sufficient and the EAT was satisfied that the Tribunal had correctly done this.

The EAT was also unconvinced by the Council’s argument that the child in this case mocked any strong accent and therefore her mocking of the Claimant in this regard was not racially motivated. It stated that the Claimant’s accent constituted a racial characteristic which was mocked and the fact that the child’s motivation may have been unrelated to his race was irrelevant.

A further point taken on appeal was that a different division of the EAT had, since the Employment Tribunal judgment in the present case, ruled that an employer was not liable under the Race Relations Act for the acts of a third party in circumstances said to be similar to the present case. That point was however dismissed on the basis that the present case had been considered under the scope of the Directive rather than the domestic legislation and that in any event the argument now sought to be put before the EAT had not been put before the original Tribunal.

The EAT therefore upheld the decision of the Tribunal and dismissed the Council’s appeal.

While this case was considered in the context of the Race Directive with a nod towards the domestic legislation then contained in the Race Relations Act 1976, it has become more straightforward for Claimants to succeed with a claim for third party harassment due to the introduction of the Equality Act. This specifically includes a clause which will make an employer liable for harassment caused by a third party providing that the employer is aware that the employee has been subjected to harassment on at least two previous occasions and the employer has failed to take action to prevent this.