After the recent employment appeal tribunal decision in Gravell v London Borough of Bexley, it seems that in future employers will be held liable for acts of harassment by third parties. It was previously thought that employers would not be liable for the actions of third parties.
Gravell, white and British, was employed by Bexley Council as a prevention and advice officer in the local authority's housing department.
She brought a claim of racial harassment against the council, complaining that at the start of her employment she had been told that it was the council's policy to ignore racist comments from customers and that she could not tell customers that any such comments were unacceptable. She complained that, as a result of this policy, she had had to listen to racist comments made by customers. Gravell referred to a specific incident in which a customer used the word "paki" twice, which she found offensive.
An employment tribunal chairman struck out the claim on the basis that employees cannot bring complaints against their employers in respect of comments made by third parties. The appeal tribunal disagreed, however.
The appeal tribunal held that there was nothing to prevent a tribunal from finding that an employer has liability for harassment by a third party - in this instance one of the council's customers - when there are no preventive measures in place.
It held that if Gravell was able to prove that Bexley Council's policy of not challenging racist behaviour by clients was capable of creating an offensive working environment for her, then it could fall within the harassment provisions of the Race Relations Act 1976.
If the approach followed by the appeal tribunal in Gravell is adopted, it will mean that charities are more likely to be held responsible for discriminatory acts carried out by third parties if they permit harassment to occur in situations where they could have controlled whether or not it happened.
This means that charities will have to put measures in place to ensure that their clients or customers are aware that they should not harass members of staff. These measures could include training staff to deal with potential harassment scenarios and encouraging them to report incidents of harassment so that they can be properly investigated.
- Emma Burrows isa partner and head of the employment group at Trowers & Hamlins solicitors.