Though an employer was held not liable for racial harassment by a third party, the employment tribunal decision that the employer was liable for indirect discrimination as regards reporting of racial abuse was not appealed.
The claimant was a mental health nurse in a secure residential unit for adult men sectioned under the Mental Health Act. He was subjected to a serious assault by a patient accompanied by racist abuse calling him a ‘f***ing black’. The patient had a history of racist behaviour.
The Employment Appeal Tribunal (EAT) rejected an argument that (effectively) Unite the Union v Nailard on harassment by third parties under the Equality Act was wrong. Accordingly the employer here was not liable for racial harassment.
However the employment tribunal (not a binding precedent because this wasn’t appealed) had found the employer liable for indirect discrimination. The employer’s practice of failing to ensure that all staff reported each and every incident of racial abuse by patients put ethnic minority staff at a particular disadvantage. The employer should have taken steps to reinforce the message to staff that they should do an incident report after every such incident.
The case is Bessong v Pennine Care NHS Foundation Trust, www.bailii.org/uk/cases/UKEAT/2019/0247_18_1810.html