The recent case of Conteh v Parking Partners Ltd marks a watershed for the old discrimination laws, and harassment in particular.
The Claimant was a black African female born in Sierra Leone. She was employed by the Respondent employer from 16 February 2009 as a customer car park attendant working in a car park at St George's Residential Development. The employer was a company which carried on business providing car parking facilities.
The marketing staff for St George's worked at the premises and were issued with tickets as they entered the car park. To leave the tickets had to be validated and on occasion the validation machine was broken. The Claimant had standing orders not to allow anyone to leave if their ticket was not validated. On the 14th March 2009, the Claimant exercised this standing order and refused to allow a member of the marketing staff to leave.
The following day another member of the marketing staff came into the Claimant's office and was alleged to have said that "The fucking bloody machines are not working and who is paying your fucking bloody wages?", pointed to the sign on the wall and answered the question by saying, "St George's, you fucking stupid black African bitch". She went on insulting the Claimant, eventually letting herself out and slamming the door.
A further incident took place that same evening when the two marketing staff deliberately blocked the exit barrier to outgoing traffic for about 15 minutes, and shouted and argued with the Claimant.
The Claimant's manager did make some enquiries and took some steps to address the problem but the tribunal found that he did not "(1) speak to other members of its staff to explore whether there was any history of abuse or earlier instances of abusive conduct (2) speak to more senior managers at St George's or (3) speak to the Claimant after the event to explain what had been done or was proposed to be done and how the new working practice would operate for her benefit." These failures were said by the Claimant to be acts of discrimination and to be less favourable treatment both on the grounds of her race and victimisation following her report that she had been subject to racial abuse. She complained that an environment had been created at work which constituted harassment within the Race Relations Act 1976. The Tribunal disagreed and so did the EAT.
The case was decided under the old Race Relations Act 1976. Under that Act, where an employee works in an environment in which her dignity is violated, or which becomes intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer does not control, the employer is not liable for discrimination or harassment on the grounds of race. Here the Claimant had been subjected to abusive remarks from a third party over whom her employer had no direct control; the Claimant's employer was a contractor to the third party's employer. Thus the employer had not created the adverse environment, and the employer could not be held vicariously liable for the third party's actions.
But now we have the new Equality Act 2010, introduced in October of 2010. This Act subsumes the Race Relations Act 1976. In fact it consolidates nine Acts of Parliament, 100 statutory instruments and 2,500 pages of guidance in its attempt to pull together the disparate strands of discrimination law.
And the new Act may have allowed for a different result. Section 40 places a duty on employers to prevent third party harassment which arises where the employee (or job applicant) has been harassed by a third party on at least two previous occasions, and the employer is aware of the harassment but fails to take 'reasonably practical steps' to prevent harassment by a third party happening again.
The example given in the draft Code of Practice on Employment is of a Ghanaian shop assistant who is upset because a customer has come into the shop on Monday and Tuesday and on each occasion has made racist comments to him. On each occasion the shop assistant complains to his manager about the remarks. If his manager does nothing to stop it happening again, the employer would be liable for any further racial harassment perpetrated against that shop assistant by any customer.
In this case there were certainly two incidents however they were in close proximity to each other and it is therefore arguable that in these circumstances it was not reasonable practicable to take steps to prevent the 2nd incident. If however there had been a 3rd incident the following week, then it is likely that the employer would have been held liable.
There are though ways to guard against this form of liability including the following:
•having a policy on harassment;
•notifying third parties that harassment of employees is unlawful and will not be tolerated, for example by the display of a public notice;
•inclusion of a term in all contracts with third parties notifying them of the employer's policy on harassment and requiring them to adhere to it;
•encouraging employees to report any acts of harassment by third parties to enable the employer to support the employee and take appropriate action;
•taking action on every complaint of harassment by a third party.
Taken with the impending abolition of the statutory retirement age this is a good time to be reviewing your contracts of employment and policies. They need it!
