Third Party Harassment: Not doing enough

In Sheffield City Council v Norouzi, the EAT concluded that the Council was liable for the discriminatory acts of a child against a member of staff.  Case summary

Mr Norouzi was employed by the Council as a residential social worker at a home for troubled children.  He is Iranian.  A child at the home regularly offended Mr Norouzi on racial grounds, often mocking his accent and saying that he should “go home”.  Mr Norouzi went on sick leave and then claimed for, amongst other things, harassment against the Council.  It was found during the ET proceedings that the Council knew about the harassment but did not do anything to protect Mr Norouzi.  As a result, it was found that the Council was liable for the acts of harassment under the Race Relations Act 1976.  At appeal, the Council tried a new line of defence - it argued that the employer should only be liable if the employer’s lack of action caused in itself an ‘intimidating, hostile or offensive environment’ and that the inaction was on racial grounds (as per the case Conteh v Parking Partners Limited (see here).  Further the Council sought to argue that the child’s intention was not to racially harass, but to challenge authority.  Both lines of argument were rejected as the Council had not raised the arguments before at the ET.  What does this mean?

The EAT acknowledged that there may be a tension between the Conteh case and the ET’s decision, so there could be a number of appeals in this area until the case law is settled.  Nonetheless, the case serves as a useful reminder that employers should take action to prevent harassment from third parties.   This is particularly important now that the Equality Act 2010 provides specific protection against such treatment for the majority of the protected characteristics.