Third Party Harassment Under the Old Law

[Thanks to Louise Jones of Temple Garden Chambers for preparing this case summary]

The EAT (Langstaff J) has handed down judgment in Conteh v Parking Partners Ltd, which was decided under the (old) Race Relations Act 1976. Where an employee worked in an environment in which her dignity was violated, or which became intimidatory, hostile, degrading, humiliating or offensive as a result of actions of others whom her employer did not control, an employer is not liable to her for damages for discrimination or harassment on the grounds of race. The tribunal's rejection of the claim for racial harassment under section 3A RRA was upheld.

The Claimant had been subjected to abusive remarks from a third party over whom her employer had no direct control; the Claimant's employer was a contractor to the third party's employer. Thus the employer had not created the adverse environment, and the employer could not be held vicariously liable for the third party's actions.

In the present case, the EAT was able to reach its conclusion by a close examination of the Race Relations Act 1976 with little recourse to common law authority. However, it is interesting to ponder how the analysis would have been different under the Equality Act 2010, which, by section 40, allows an employee to claim against the employer if the employer has not done enough to prevent third party harassment, although an employee will only succeed where (s)he has been subjected to harassment on at least two occasions and the employer has failed to take such steps as would have been reasonably practicable to prevent it.