In Sheffield City Council v Norouzi, the EAT has ruled that the Council was liable for acts of racial harassment carriedout by a child in a care home against one of its employees. The Appeal Tribunal confirmed that the case of R (Equal Opportunities Commission) v Secretary of State for Trade and Industry provides the legal basis for an employer to beliable under the Race Relations Act 1976 (RRA) for the discriminatory conduct of a third party where he knowingly fails to protect an employee from repetitive harassment by that third party.
N, who is Iranian, was employed by the Council as a residential social worker at a home for troubled children. One of the children at the home, A, was regularly offensive to him on racial grounds, often mocking his accent and saying that he should go back home. Upset by this behaviour, N went on sick leave and subsequently brought a claim of, among other things, harassment against the Council.
An employment tribunal found that the Council had been informed of the racial harassment directed against N but had not acted to prevent that behaviour. It noted that, on the basis of the High Court's reasoning in the EOC case, anemployer could be liable for the conduct of a third party in circumstances where there is a continuing course of offensive conduct about which the employer is aware but does nothing to safeguard against. The tribunal held that, given the Council's inaction, it was liable for the racial harassment directed against N by A. The Council appealed, contending by way of a new argument - founded on the EAT's recent decision in Conteh v Parking Partners Ltd - that anemployer could only be liable for harassment carried out by a third party if the employer's failure to take action to safeguard the employee itself leads to the creation of an 'intimidating, hostile¿ or offensive environment' within the meaning of S.3A RRA and the employer's inaction is itself on racial grounds.
Rejecting the Council's appeal, the EAT (presided over by the President, Mr Justice Underhill) held that the EOC decision entitled the tribunal to find that the Council was responsible for A's acts of racial harassment since there had been a continuing course of offensive conduct about which the Council had been made aware. Furthermore, the Council could not rely on the Conteh point since, though that case had not yet been decided when the tribunal had heard the case, the particular issue of whether an employer's inaction has to be shown to 'create' a hostile environment was nevertheless one that could have been raised by the Council at the tribunal stage. It was now too late to argue that issue on appeal. Underhill P acknowledged that there may well be tension between the decisions in the EOC and Conteh cases, but this was not the case where any such tension could be explored and resolved.
On a subsidiary point, the EAT also dismissed the Council's argument that A's underlying motivation in mimicking N's accent was to challenge authority and was thus not racially motivated, with the consequence that the Council could not be liable for such conduct. Underhill P observed that mocking A's Iranian accent was to mock a racial characteristic of the claimant and that this was analogous with overtly racial abuse.
This case will be reported in a future edition of IDS Employment Law Brief.
Further information:
http://www.bailii.org/uk/
Source: EAT 22/6/2011
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