UK: Pupils Teach School Lessons

By s.3.2 Race Relations Act 1976 an employer is liable for the discriminatory acts of its employees and agents unless it has taken all reasonable steps in advance to prevent that sort of conduct. Similar provisions exist in the sex and disability legislation. But does an employer also have a duty to take steps to protect employees from actions or comments made by unconnected third parties?

The Employment Appeal Tribunal decision in the case of Burton and Rhule v De Vere Hotels Ltd in 1996 received considerable media attention due to the involvement of Bernard Manning. Two black waitresses claimed that they had been racially discriminated against by their employer in that the Hotel management failed to take steps to stop them being exposed to racist abuse by Mr Manning and members of his audience at a function in the Hotel. The issue was whether the employer could be liable for the abuse under the Race Relations Act even though neither Mr Manning nor his audience were Hotel agents or employees. It was held that the Hotel had racially discriminated. The abuse had taken place at an event that was under the Hotel's control, and that it could have prevented the harassment (or at least reduced the extent of it).

The principle was therefore established that an employer is under a duty, where reasonably practicable to protect employees from being harassed by any third party, whether a "comedian", customer, member of the public - anyone their work would cause them to have contact with.

The principle has most recently been put to the test in the case of Bennett v Essex County Council [2000] IDS Brief 666. Mrs Bennett is black and was employed as a teacher at Fryern School from January 1995. She was the only black teacher there. The School had a number of pupils with behavioural problems and during the first 4 months of her employment Mrs Bennett was subjected to a number of incidents of racial abuse by them. The incidents were reported to the Head of Humanities who prepared letters to parents of five of the pupils. The Headmaster however instructed that the letters were not to be sent as the School had previously encountered difficulties in getting support for disciplinary sanctions from parents. The incidents stopped in April 1995 anyway but a year later further incidents of racial abuse were reported and the parents were then contacted immediately. Nonetheless Mrs Bennett claimed race discrimination.

The Employment Appeal Tribunal found that the original incidents were not taken as seriously as they should have been, that no policy had been devised to deal with the complaints and that the School's response to the complaints was muddled. They were therefore satisfied that the employers had not taken all reasonably practicable steps to prevent Mrs Bennett from being subjected to racial harassment by the pupils. The fact that later incidents were dealt with promptly was irrelevant and the EAT found that the school was liable for racial harassment.

In conclusion while all employers need to have a policy dealing with race discrimination (sex and disability too) to have a realistic chance of escaping liability for the discriminatory actions of their employees, it is just as important that they do everything reasonably in their power to prevent employees suffering from discrimination by any other parties with whom their work brings them into contact. Precisely what steps are reasonably practicable will vary from job to job - the waitresses could have been taken off duty but that is scarcely feasible if considering a teacher or train guard. Perhaps the School should have written regardless of possible parent reaction. Other employers may be advised to put up posters in public areas. The obligation to protect against third parties is particularly strong where there has been a complaint about a particular person or circumstance - if it is left unaddressed, as in both Burton and Bennett, the Tribunals are unlikely to be sympathetic to the employer.