BDW Trading Limited v Kopec - Third-party harassment

The Employment Appeal Tribunal (EAT) has ruled that a tribunal had erred by finding an organisation had harassed an employee despite also finding its officers had not been motivated by discrimination.

Under the Equality Act 2010, direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a protected characteristic compared with others in like-for-like circumstances. If the claimant establishes a case which at first sight indicates that discrimination could have occurred, then the ‘burden of proof’ switches to the organisation, which then has to show a non-discriminatory reason for their actions.

Harassment is a form of discrimination, and takes place when conduct directed towards an individual is ‘related to’ a protected characteristic and has the ‘purpose’ (intentionally) or ‘effect’ (unintentionally) of:

  • violating that person’s dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

In the eyes of the law, organisations are not automatically liable for discriminatory acts committed by third-parties. The 2019 Court of Appeal Unite the Union v Nailard case outlined that the failure of managers to act in situations of third-party harassment would only breach the law if managers had a discriminatory motivation.  

FACTS

The claimant in this case was originally from Poland and identified as a heterosexual male. The organisation had previously informed him that he needed to improve his ‘softer skills’ in order to put clients at ease. During one of his shifts, the claimant was racially abused by a delivery driver, something that was overheard by his manager, Ms Lane. She was appalled by what she heard but also blamed the claimant for his own conduct during the confrontation.

A second incident took place, where the claimant was again racially abused and subjected to further comments about his perceived homosexuality. The second driver, Mr Skeed, later faced criminal charges but was not convicted. Ms Lane was again critical of the claimant’s  conduct and implemented a disciplinary procedure against him, feeling he was not prepared to discuss his shortcomings. The claimant was issued with a verbal warning and, upon receiving this, texted Mr Skeed demanding that he come forward and ‘tell the truth’ about the incident.   

As a result of the text, the claimant was suspended. He later resigned, citing discrimination and harassment. The organisation accepted his resignation and held a separate grievance over his allegations, which was not upheld. His appeal against his earlier verbal warning was also dismissed.

ET

The claimant later brought numerous claims to the employment tribunal (ET), citing racial and sexual orientation discrimination, harassment and constructive dismissal. The tribunal firstly found that he had been constructively unfairly dismissed and then addressed his discrimination claims.

They explained that the organisation’s failure to effectively deal with the claimant’s complaints and an ignorance of equality policies shifted the burden of proof to them to establish discrimination had not taken place. However, the tribunal ultimately held that a hypothetical comparator who did not share the claimant’s protected characteristics would have been treated the same; he had been dismissed due to his conduct, not because of the prejudices of the organisation.

That said, the tribunal then upheld his complaint of harassment. This was because the organisation had failed to properly investigate the abuse he had suffered from both drivers and this had therefore created a hostile environment for him.

EAT

The organisation appealed to the EAT, arguing that as the tribunal had found their actions were not tainted by discrimination, they could therefore not have harassed the claimant. The EAT agreed, saying that the tribunal had erred by not referring to the Nailard decision. As such, they remitted the decision to the ET in order to apply Nailard to a fresh judgement.

Note for employers 

This case follows on from the Nailard ruling, confirming organisations are not automatically liable for third-party discrimination. However, their actions or in-action in these situations could still lead to other tribunal claims, such as constructive dismissal. To this end, it is important to observe the behaviour of third-parties in relation to staff and take action where necessary. For example, perpetrators could be banned from the building.

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