Race discrimination and harassment claim fails as under RRA 1976 the employer was not vicariously liable for actions of third party employees

Under section 40 of the Equality Act 2010 an employee might succeed in a claim for harassment where his employer failed to act to protect an employee from discrimination

Conteh v. Parking Partners Ltd [2010] UKEAT 0288_10_1712

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• The RRA 1976 did not make the employer vicariously liable for the actions of third party employees
• Inaction of the employer needed to be on the grounds of race or ethnic or national origins in order to make a finding of harassment
• An employer might now be liable under the Equality Act 2010 section 40 if he had failed to act to to prevent third party harassment that occurred on at least two occasions .
• Common law had little relevance to this case

The Claimant, a car park attendant was subjected to abusive and racist remarks and behaviour from two employees of a third party employer. The claimant's own employer being afraid to 'rock the boat' in a commercial relationship did not complain to the other employer, but instead changed working practises so as to minimise future friction between his employee and those of the third party. Unfortunately the claimant's employer did not inform his employee of the new working methods, and this led to further confrontation and harassment of the employee.

The ET found that the common law had little relevance to this case, finding under the RRA that as the claimant's employer's failure to act was not for discriminatory reasons and as he had not created the adverse environment, he was not vicariously liable for the actions of third party employees. The ET dismissed the claim for direct discrimination on the ground of race and for racial harassment. The EAT upheld this conclusion and dismissed the appeal.

The employment tribunal had found that although there were failings in investigating and acting on the claimant's complaints these failures in responding to allegations of racial or non-racial abuse would have applied regardless of the colour of the employee (the claimant is black).

Although the ET supported by the EAT agreed that, "complaints of racial abuse are matters of utmost gravity and to be taken seriously" the law will not always make an employer liable.

James v Eastleigh Borough Council [1990] 2 AC 751 HL was quoted by the appellant (where female pensioners were admitted free to a swimming pool but men were not) as an example of actions that are inherently discriminatory, a discriminatory criterion making it unnecessary to enquire as to "the reason why" of a discriminatory act. That would otherwise be the approach (also Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48). The relevance in this case as to the question of direct discrimination and the employer's inaction being inherently discriminatory was not accepted by the EAT.

The EAT similarly rejected the claimant's argument (citing Gravell v The London Borough of Bexley EAT/0587/06 where an employment tribunal struck out a claim brought under section 3A of the Race Relations Act where the Claimant complained of the employer's policy of ignoring racist comments from customers HHJ Peter Clark stated that the employer might possibly be found liable of harassment contrary to section 3A without himself deciding it. The House of Lords decision in Pearce v Governing Body of Mayfield Secondary School [2003] UKHL 34 regarding the decision of Burton v De Vere Hotels [1996] IRLR 596 (liability of the employer for the racist jokes of Bernard Manning) was cited.

The EAT found that 'creating' does not include where an employer only failed to rectify actions of others and that 'unwanted conduct' might include inaction, but but that inaction would still need to be on the grounds of race or ethnic or national origins in order to come under the heading of harassment. Inaction for other reasons such as illness of the employer would not suffice to make the employer liable for racist conduct committed by third parties, that section 3A necessitates causation and the employer's motivation being investigated.

As to direct discrimination in the comparison as to the employer's treatment of different races it was found that as the employer would have failed to act whatever the race, preferring to proceed with caution, race did not enter the equation. The EAT found that in this case the employer had not created the environment but improved it somewhat.

Home Office v Dorsett Yacht Co Ltd [1970] AC 1004 and Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 were quoted whereby the defendant is not responsible for the forseeable actions of a third party alone but reasonable and probable consequence of the third party's behaviour and proximity between the tortfeasor and victim must be shown.

The EAT in rejecting the appeal decided that the employment tribunal was entitled to make its findings of fact.

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