UK: Third party harassment - employers may be liable under general harassment law

An employer should take appropriate steps to deal with third party harassment, even where the express provisions in the Equality Act (requiring two prior occasions of third party harassment) do not apply.

An EAT ruling strongly suggests that, pursuant to EU law, the Equality Act general prohibition on harassment "related to" a protected characteristic such as race can cover an employer's failure to deal with racial harassment, even if race is not the reason for the employer's own inaction. (The case actually concerned the pre-Equality Act "on grounds of" test but, as the employer was public sector, this had to be construed widely in accordance with EU law.)

For procedural reasons, the EAT did not consider the decision in Conteh that an employer is only liable if its inaction itself "creates" a hostile environment. The EAT acknowledged that there is tension between the cases, so this is unlikely to be the last we hear on this subject, not least because the Government is consulting on the removal of the express third party harassment provisions in the Equality Act.

The case also establishes that mocking someone's foreign accent is inherently racial in the same way as overtly racist comments, even if the underlying motivation is not racial. (Sheffield City Council v Norouzi, EAT)