‍It was not going to be long before media reports of the inevitable online abuse of Messrs. Rashford, Sancho and Saka surfaced.

Is there a duty on employers to prevent racial harassment from third parties such as customers, patients or even fans?

These brave and committed young men served their employers (and their country), the Football Association, diligently throughout the Euro 2020 competition.

As a result they are now suffering racial harassment from third parties through social media.  

The FA have acted quickly to report the harassment to the relevant authorities and cannot reasonably be expected to be able to guard their employees from such acts which, unfortunately, are societal and increasingly commonplace.  

However, is there a duty upon employers to take reasonable steps to protect employees from third party harassment?

The law is in an unsatisfactory position on this issue.

The Old Law

The Equality Act 2010 (“the Act”) section 40 used to contain specific provisions concerning third party harassment and placed specific duties upon employers.  These provisions were repealed on 01 October 2013.  

Under the Act and cases including Sheffield City Council v Norouzi (2011) (social worker subject to ongoing racial abuse by a child in a care home) it was arguable that an employer’s reaction or failure to react to third party harassment would itself amount to discrimination or harassment especially when the employer did not take action to prevent the abuse from happening again.  In this case the local authority allowed the racial abuse to carry on despite repeated warnings and failed to make any interventions to seek to modify the child’s behavior.  

The New Law

The new law is much more limited and employers will only be held liable for third party harassment in exceptional circumstances under section 26 of the Act.  This section is triggered when an employer engages in unwanted conduct relating to a protected characteristic such as race, sex, age and disability which violates an employee’s dignity or creates an “intimidating, hostile, degrading, humiliating or offensive environment”.

Pursuant to Unite the Union v Nailard (2018) (sexual discrimination and harassment by a trade union regional officer against two workplace union officials), an employee can still potentially argue that their employers inaction in the face of third party harassment itself amounted to an unlawful act.  In order to be successful an employee would need to show that the protected characteristic was the reason for the employer’s failure to protect them against harassment by a third party.  The focus would have to be on the grounds relied upon by the employer for failing to protect and not the third party harassment itself.  

The Nailard case was followed by the case of Bessong v. Pennine Care, NHS Foundation Trust UK (2018) (black nurse subject to ongoing verbal racial abuse and physical injuries from a patient) which held that the NHS Trust was not liable for the racial harassment suffered by the nurse because its failure to take adequate steps to prevent racial harassment was not because of race. The Employment Appeal Tribunal held that there was nothing in the applicable EU law at the time that required employers to be liable for third party harassment.

Looking Forward

The removal of the third party harassment provisions under Section 40 of the Act were controversial at the time and remain so, particularly in the light of public sentiment expressed by movements including #metoo and #blacklivesmatters.

The case of Nailard has significantly limited the employer’s exposure to third party harassment claims compared to the old law.  I would anticipate government intervention at some stage.  

The government continues to consult on whether new third party harassment provisions should be introduced and whether employers should be liable for failing to protect their employees from unwanted conduct when they should reasonably be expected to act.  

There is clearly a balance required between reasonable employee protection and employers being able to run their businesses without being held responsible for acts outside of their control.

In the interim, I sincerely hope that there are other means of solving the issue of vile and unwanted social media harassment.

Further Information

Should you require any further information regarding discrimination, harassment or commercial law, please do not hesitate to contact Bill Dhariwal, Solicitor and Director at Lawcomm Solicitors, DDI: 01489 864 117 or E: bill.dhariwal@lawcomm.co.uk