Bernard Manning is back! Bet you never expected to hear that from an employment lawyer?!

In a nutshell:

Why do I mention Bernard Manning, you ask. Well, for all the wrong reasons, as you might expect. It’s all to do with the government’s intention to reintroduce statutory protection for employees, making employers liable for harassment of its employees by third parties. In the school context this may be a very real issue for school staff seeking to bring claims against their employers for any harassment they experience from pupils or parents at work, as opposed to fellow employees.

The bigger picture:

Until 2003, where an employer was in a position to have prevented an act of discrimination committed by a third party against its employees, the employer would be automatically liable for the discrimination – Burton and another v De Vere Hotels Ltd [1997]. This case became known as the "Bernard Manning" case and involved two black waitresses who were waitressing at a function in one of the respondent's hotels. They were made the subject of racist and sexist remarks by the after-dinner speaker, the “comedian” Bernard Manning and various other third-party attendees. The EAT held the hotel group liable for direct race discrimination against the waitresses (not harassment, as there was no statutory definition of harassment at that time).

The principle of third-party liability, established by the Bernard Manning case, was overruled in Pearce v Governing Body of Mayfield School [2003]. The House of Lords held that a failure to take reasonable steps to prevent an employee from racist or sexist abuse would not render the employer liable in respect of harassment by a third party unless the reason for that failure to act was in and of itself motivated by a discrimination by the employer on account of the harassed employee’s protected characteristic.

The Equality Act 2010 (EqA 2010) sought to rectify the position by introducing statutory protection for employees against third-party harassment for all protected characteristics, except marriage or civil partnership and pregnancy or maternity. However, an employer would not liable unless it knew that the employee had already been harassed by a third-party (not necessarily the same one) on at least two previous occasions (the ‘three-strike rule’). Additionally, an employer was not liable where it had taken all reasonably practicable steps to prevent the harassment – high hurdles for a harassed employee to overcome.

The third-party harassment provisions in the EqA 2010 didn’t last long and were repealed in 2013. The current position leaves employees harassed at work by third parties in an even more precarious position in seeking to establish any liability on the part of their employer. Whilst an employee can potentially argue that their employer's inaction in the face of third-party harassment itself amounted to an unlawful act, the Court of Appeal in Unite the Union v Nailard [2018] held that a harassed employee would need to show that their own protected characteristic was the "ground of" (reason for) the employer's failure to protect them against the harassment and this would not be established by the employer simply failing to protect them from the harassment: the focus is on the discriminatory ground for the employer's inaction, not the third party's harassment.

In the recent case of Mallet-Ali v Perth and Kinross Council a Scottish tribunal held that a school was not liable for its failure to prevent a teacher from being subjected to racist abuse by pupils because, the tribunal said, the way in which it dealt with the situation was not discriminatory on the ground of the claimant’s race.

The facts are stark and worthy of mention:  Mrs Mallet-Ali worked as a teacher in a local authority school. She was a Scottish national of Pakistani ethnic background. 

Pupils in her class regularly ‘put on’ a mocking Indian accent and used racist terms in front of her. Mrs Mallet-Ali complained after each incident and the school dealt with the pupils by talking to them (and their parents) about their inappropriate behaviour and asking them to apologise to Mrs Mallet-Ali. Mrs Mallet-Ali wanted the pupils excluded from her class and for the incidents to be treated as hate crimes under criminal law. The school reported the incidents to the police but was unable to exclude the pupils from her class due to Scottish government guidance.

Mrs Mallet-Ali became ill with stress and went off sick. She raised a grievance and resigned when this wasn’t upheld, claiming that her relationship with the school's leaders had broken down and that it was unsafe for her to return to work. These particular claims relate to alleged breach of contract and unfair dismissal and are not the subject of this blog.

Mrs Mallet-Ali also claimed that the school had subjected her to direct race discrimination in the way it failed to deal appropriately with the harassment she had endured.  The tribunal rejected this claim despite accepting that the pupils' behaviour towards her was racially motivated. But, as the law currently stands, that did not amount to direct race discrimination. Mrs Mallet-Ali needed to show that her employer had treated her less favourably than it would treat others (whose circumstances were not 'materially different' from hers) because of her protected characteristic of race. Mrs Mallet-Ali couldn't identify an actual comparator and the tribunal decided that the school would have treated a hypothetical comparator (which was a white teacher subjected to discriminatory language or behaviour by pupils) in exactly the same way. Therefore, there was no direct discrimination and Mrs Mallet-Ali’s claim failed.

Why is this important?

It is abundantly clear that it is extremely difficult for an employee to succeed with a claim for discrimination against their employer owing to the discriminatory behaviour of a third party. The government has come under increasing pressure to rectify this and re-enact the third-party harassment protections previously found in the EqA 2010 (repealed in 2013). The government is currently supporting the Worker Protection (Amendment of the Equality Act 2010) Bill (the Bill) which will re-introduce employer liability for third-party harassment of employees in certain circumstances. The proposals under the Bill differ from those repealed in the EqA 2010. For starters the ‘three-strike rule’ won’t apply and employees will be able to bring harassment claims against their employer relating to a single incident of harassment. The liability will apply to harassment in respect of any relevant protected characteristic. But an employer will still be able to defend a claim on the basis that it took all reasonably practicable steps to prevent the harassment by third parties. The EHRC Employment Statutory Code of Practice recommends the following steps, depending on the size and resources of an employer:

• A harassment policy (reviewed as appropriate).
• Equal opportunities training around the harassment policy.
• A public notice reminding third parties that harassment is unacceptable.
• An express term in contracts with third parties requiring them to adhere to the harassment policy.
• A suitable reporting mechanism encouraging employees to report any acts of harassment by third parties to enable the employer to support the employee and deal effectively with employee complaints.

The Bill will also amend the EqA 2010 to exclude employer liability for expression of certain opinions by third parties (and employees) providing that an employer will not be considered to have failed to take all reasonable steps to prevent harassment of an employee solely because it does not seek to prevent the expression of opinion in conversations or speech where:

• The harassment is unwanted conduct related to a relevant protected characteristic;
• The employee harassed is not a participant in the conversation, or the speech was not aimed specifically at that employee;
• The conversation or speech involves the expression of an opinion on a political, moral, religious or social matter.
• The opinion expressed is not indecent or grossly offensive; and
• The expression of the opinion does not have “the purpose” of violating an employee's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee (the wording only refers to "the purpose" rather than "the purpose or effect".

The Bill also introduces a mandatory duty on employers to prevent sexual harassment in the workplace and give employment tribunals the power to uplift employees' compensation for sexual harassment where a breach of that duty is found.

What next?

The Bill is currently passing through Parliament and is likely to be enacted at some point in 2024. Once enacted, school staff will be able to claim harassment against their employer owing to third-party harassment from pupils or parents relating to their protected characteristics. There will be no need to prove that the employer was discriminatory in the way in which it dealt with the complaint(s) of harassment. However, a school will be able to successfully defend a claim where it can demonstrate that it took reasonable steps to prevent the harassment. It remains to be seen what ‘reasonable steps’ would be needed to satisfy a tribunal that the defence applies.

It is advisable to make preparatory steps now in anticipation of the Bill coming into force in the not-too-distant future:

1. Identify, through confidential enquiry, the level of harassment and bullying your staff currently face.
2. Understand from where the harassment arises and to whom it is directed.
3. Discover the nature of the harassment and any prevalent trends regarding protected characteristics such as age, race, sex, sexual orientation, disability etc.
4. Review your policies and procedures around reporting and recording incidents of harassment confidentially, dealing effectively with perpetrators and supporting those who have been targeted.
5. Ensure third parties, including pupils, parents and others, are made aware that harassment of staff will not be tolerated and draw the harassment policy to their attention.
6. Educate staff and pupils through training and in-school activities focusing on harassment, discrimination and cyber-bullying.
7. Deal with issues promptly, even-handedly and according to your policies and procedures.
8. Monitor complaints and address any problem areas.
9. Evaluate your progress regularly and adapt any education and training needs accordingly.

If you would like to have a conversation about how our team can support you and your school around the issue of harassment by third-parties or harassment generally, please contact one of our team here at Just People HR.