A recent EAT decision raised a couple of interesting points in relation to the tort of racial harassment introduced in 2003 (s.3A Race Relations Act 1976). The case concerned a white woman of British/English nationality working in the Council's Housing Department who brought a complaint against the Council's alleged policy of ignoring racist comments made by customers
At issue was the status of obiter comments in Pearce v The Governing Body of Mayfield in which the House of Lords suggested that the actions of the pupils towards their teacher could not give rise to liability on the part of the school for discrimination (casting doubt on the earlier decision of Burton v De Vere Hotel).
The EAT considered Pearce in the light of the new harassment provisions and held that it was certainly possible that if, as a matter of fact, it were shown that there was a policy of ignoring racist remarks, the tort of harassment could be made out. The obiter comments in Pearce did not, in the EAT's view, preclude an employer from liability for harassment by a third party. Further, if the Tribunal found, as a matter of fact, that there had been a policy of not challenging racist remarks, this policy could itself constitute racial harassment. (Gravell v London Borough of Bexley)