As an employer, can you be held liable if an employee is racially abused by third parties such as customers?
Bessong v Pennine Care NHS Foundation Trust
Mr Bessong is a black African who worked for the respondent as a mental health nurse. He was punched by a patient on the ward, who also held a pen and said “you f***ing black I’m going to stab you now”.
Mr Bessong had significant facial swelling and redness and had to go to hospital. The assault was reported to the Police. The respondent made an incident report but no mention was made of the racial element of the assault.
Amongst other claims, Mr Bessong brought an harassment claim against the Trust on the grounds of race.
The tribunal found that the respondent had failed to take adequate steps to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. They had failed, therefore, to protect Mr Bessong from such harassment. However, the failures themselves were not related to his race and so the Trust could not be guilty of harassment under the Equality Act 2010.
Mr Bessong appealed.
The EAT dismissed the appeal and held that the respondent was not liable for racial harassment by the patient because the failures by the Trust to take adequate steps to prevent racial harassment in its workplace, whilst contributing to the ultimate abuse, were not related to race.
The current legal position in the UK does not give employees rights against their employers where they are harassed by third parties in the course of their work. There are limited circumstances where an employer could become liable because of the way they react to any complaints but the bigger risk for employers is reputational damage of failing to provide protection.
If you have any queries in relation to third-party harassment or any other Employment law or HR queries please contact our employment team on 01228 552600 or 01524 548494.