Duncan Lewis

A proposed change in the Equality Act 2010 which could remove the third party liability to employers could be negated by the ECJ with its general principle of non discrimination law

Date: (21 May 2012)    |    

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A residential social care worker at the Sheffield city Council and based at a children’s home for troubled young people was subjected to harassment by a girl living at the home which included series of offensive comments about the claimant’s Iranian origins and also aping his accent.

Norouzi endured it for two years before he took sick off and launched legal proceedings. While previously the law did not hold employers liable for third-party harassment, G Norouzi successfully argued that as a public sector employer the council was bound by the EU Race.

The Employment Appeals Tribunal (EAT) ruled that the management had been aware of the sustained campaign of harassment but neither investigated it properly nor challenged the child regarding her behaviour and allowed the behaviour to become normalised.

The local authority argued that its inaction had neither caused nor created the hostile conditions experienced by the claimant. It failed in its arguments that it could not be held liable for the racial harassment the EAT decided.

The council had argued that the mocking by the girl in the claimant’s accent did not amount to racial harassment also was brushed aside by the EAT which said that the mocking of a racial characteristic (such as an accent) was equivalent to blatant racial abuse.

This significant decision confirms that public sector employers can now be held liable for racial harassment committed by non-employees. Since October 2010, the new Equality Act had in fact changed the law to extend third party liability to all employers (where the employer was aware of harassment on at least two previous occasions).

However, in January this year, the Coalition Government outlined its view that the statutory provision was an "unworkable requirement" and that businesses could not "prevent persistent harassment of their staff by third parties, as they have no direct control over it". Stating that it would consult with a view to amending the 2010 Act, the Government further argued that the provision costs the UK business community a total of £300,000 per annum.

Should the Government strike down the third party provisions of the 2010 Act, then public sector employees would be left reliant upon the EAT judgment in Norouzi to argue that domestic legislation does not comply with the Race Directive.

Yet the decision of the European Court of Justice (ECJ) in Kucukdevici v Swedex GmbH & Co KG may also provide comfort to workers outside the public sector.

In that German case, the ECJ ruled that national courts were required to set aside provisions of national law that conflict with the general principle of non-discrimination in EU law, even in cases involving private individuals.

It could therefore be open to employees beyond the public sector to rely on the discrimination directives where, they will argue, national law does not implement them adequately. Third party harassment is likely to be the battleground over which the application of the principle of non-discrimination is fought.