Conteh v Parking Partners Ltd UKEAT/0288/10

This case concerned events taking place before the Equality Act 2010 came into effect. There is a new provision under the Act which now renders an employer liable to third party harassment in limited circumstances.

Ms Conteh was a car park attendant at a residential development in Southwark. Her employer was the contractor to the development owner. She was not supposed to allow anyone to leave the car park without paying unless their tickets had been validated. When she was approached by someone who did not have a validated ticket she told her that she could not leave. She was subject to significant racial abuse the following day. She complained to her manager who spoke to the third party employees who denied any abuse. He reviewed the CCTV coverage but did not believe it was strong enough to prove the racial harassment allegations. As Parking Partners had no authority to take action against the third parties they instructed Ms Conteh that she should allow all the third party’s staff to leave the car park without paying regardless of whether or not their ticket has been validated in order not to rock the boat.

Ms Conteh then brought tribunal claims under the Race Relations Act 1976 against Parking Partners for direct race discrimination and harassment but was unsuccessful. It was held that its inaction did not create the hostile environment nor make matters worse and this was not on the grounds of her race. Parking Partners would have acted the same way regardless of the race of the member of staff who complained so she had not been treated less favourably.

Key point: The decision is surprising and shows how difficult it is for an employee to succeed with discrimination or harassment claims arising from the conduct of others. The Equality Act 2010 may not have assisted her either had the Act been in force at the time.