Last week, the ugly issue of racism in football once again reared its head during the England v Bulgaria Euro 2020 Qualifier.

Although quickly condemned and labelled as “abhorrent racist abuse” by the Football Association, this is perhaps a more public example of how racism can encroach into a workplace and calls into question, how should employers respond when faced with discrimination by third parties against their workforce?

Although the footballers are not employees of Gareth Southgate, it is not difficult to imagine a scenario in which racist (or sexist) comments could be meted out to your employees by individuals such as customers or suppliers. As the employer, what should you do to try to prevent this and will you be liable for a failure to prevent such incidents occurring?

The Equality and Human Rights Commission Code sets out guidance which Tribunals are required to take into account where relevant. It recommends the following actions, depending on the size and resources of an employer:

  • 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.

In terms of liability, previously, section 40 Equality Act 2010 made specific provision for employers to be liable for harassment of their employees by third parties where they failed to take reasonable steps to prevent harassment from occurring and where they knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (not necessarily by the same individual). These provisions were however repealed.

The provisions were found to have been underutilised and it was felt that the existing discrimination legislation would still support such a claim in any event.

However, the circumstances in which an employer may be caught by the discrimination provisions were significantly reduced last year by the Court of Appeal’s important decision in the case of Unite the Union v Nailard [2018] EWCA Civ 1203. The court held that an employer will only be liable in limited and exceptional circumstances. It was held that the employee would need to show that the protected characteristic in question e.g. race, sex etc. was the reason for the employer’s failure to protect them against harassment by the third party. The employer would therefore only be liable if, in the case of the English footballers and the football match on 14 October, Gareth Southgate failed to take action to deal with the harassment and he failed to take action for a reason related to the footballer’s race. That clearly didn’t happen, with Gareth Southgate carefully following UEFA’s three pronged protocol on racism.

It is now important to remember that a failure to protect employees from harassment does not automatically render the employer liable. However, it could of course lead to an argument that the employer has breached the implied term of mutual trust and confidence which entitles them to resign and claim constructive unfair dismissal. That is not the same as a claim for harassment though and crucially, at the moment, it is very difficult for employees to successfully argue that their employer should be responsible for third party harassment.

A further issue for employees is whether they can demonstrate that it is the failure of the employer which has led to the  intimidating, hostile, degrading, humiliating or offensive environment or whether, more likely it is the  third party harassment itself which has done so. The former is required in order to result in a successful claim.

There has, in recent years, been increasing pressure on the government to re-enact the provisions in section 40 Equality Act 2010 following the Presidents Club scandal (allegations from January 2018 that female hostesses were harassed by male guests). The government has recently been consulting on whether new third party harassment provisions should be introduced and if so, exactly what they will look like. The consultation closed on 2 October 2019.

At the moment, however, employees are only protected where their employer’s failure to act amounts to discrimination i.e. the reason for the inaction is because of or related to the protected characteristic.

It is clearly advisable for employers to take reasonable steps to deal with any allegations of third party harassment. Failure to do so could lead to liability for harassment but perhaps, more likely, it could lead to difficult employee relations and lack of trust in the relationship and constructive dismissal claims.

Employers who take action to deal with third party harassment will likely see the benefits Gareth Southgate has been lauded for in his handling of the racism experienced by his players. Clearly, there are practical and legal benefits for employers in handling such allegations appropriately, not least that it sends a message to third parties that discrimination will not be tolerated.

If you would like any further information, please contact Hannah Boynes on 0113 280 2058 or hannah.boynes@luptonfawcett.law or another member of the employment law team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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