An organisation's liability for racial harassment.

Written by Dr Peter Jepson (29th Sept 1998).

Email: law@peterjepson.com

This article seeks to examine the thorny problem of an organisation's liability for racial harassment. Indeed, the general foundations of this article are based upon the case law stemming from s. 32 of the Race Relations Act 1976 which establishes that an employer is potentially liable for all acts of discrimination carried out by his employees while acting within the course of their employment. However, as this article will show, an employer's liability in relation to racial harassment does not just finish with the actions of his employees. Indeed, case law now recognises that an organisation can be liable for the actions of third parties should management knowingly subject an employee to the detriment of racial harassment in circumstances where they could prevent it or reduce the extent of it. This article will seek to examine this developing area of law and establish if an organisation's liability for racial harassment conducted by third parties could apply in respect not just of its employees but also of its customers.

An employers liability.

While Section 1 of the Protection from Harassment Act 1997 requires a course of conduct - which must involve conduct on at least two occasions[footnote 1] - to establish harassment, the laws governing harassment under the Race Relations Act 1976 are much easier to fulfill. For example, it is clear that racial harassment does not have to involve physical contact and neither does it have to be a course of conduct - with the case of Bracebridge Engineering Ltd v Darby [1990] IRLR 3 concluding that a single serious incident will suffice.

While this article is essentially concerned with racial harassment it is the accepted rule that the ratios and principles stemming from sexual harassment case law are generally interchangeable with cases concerning race. Thus, the case of Strathclyde Regional Council v Porcelli [1986] IRLR 134 establishes that an employer can be liable for unfavourable treatment meted out to a female member of staff if that treatment is of a sexual character to which a man would not be vulnerable. In effect, this case applies a ratio synonymous with that found in James v Eastleigh Borough Council [1990] IRLR 298 in that 'but for' the fact that she was a woman[f2] Mrs Porcelli would not have experienced the lewd nature of the sexual harassment. More controversially, it would appear that any lewd behaviour, even though not initially directed at the complainant, may amount to harassment where, despite the complainants objections, the behaviour continues[f3].

Tower Boots Case.

However, as per s. 32(1) of the Race Relations Act 1976, in determining the liability of the employer it is important to establish that such harassment arises "in the course of employment". The case of Tower Boot Co Ltd v Jones (Court of Appeal 11th Dec 96) highlights the problems that can occur in interpreting the meaning of these words. In Tower Boots the applicant, a Mr. Jones, brought an Industrial Tribunal claim for racial harassment against his employer in respect of alleged physical and verbal ill-treatment by two fellow employees. The physical incidents consisted of: burning his arm with a hot screwdriver; whipping him on the legs with a piece of welt; throwing metal bolts at his head; and trying to put his arm in a lasting machine. The verbal incidents consisted of calling him "chimp", "monkey" and "baboon". Jones reported the burning incident to his supervisor who moved him to another part of the factory, but there was a further incident. Jones then resigned, establishing a claim under sections 1(1)(a) and 4(2)(c) of the Race Relations Act 1976.

The employers defence to the claim was essentially that this form of violent racial harassment was not conducted in the course of employment since it was not part of a task authorised by them. Indeed, the Employment Appeals Tribunal supported this argument with Buckley J remarking[f4]: "We cannot, by any stretch of imagination, see how the acts complained of by Mr. Jones, including deliberate branding with a hot screwdriver and whipping, could be described as an improper mode of performing authorised tasks". Accordingly - consistent with the traditional control features of vicarious liability found in tort law[f5] - since the acts which constituted harassment were not controlled by the employer, and were not an improper mode of performing authorised tasks, the EAT concluded that the acts were not done in the course of employment.

Perhaps not surprisingly this judgement of the EAT was regarded as a narrow interpretation of the law, with resulting criticism that it left s. 32(3) of the Race Relations Act 1976 (which provides a defence if the employer has taken all reasonable steps) "wholly otiose"[f6]. To this extent, it was with some welcome relief that the Court of Appeal reversed the judgement, finding in favour of Mr Jones. In doing so, Waite LJ argued that the Race Relations Act has "traditionally been given a wide interpretation"... with a "purposive construction" required. He stated:

"It would be particularly wrong to allow racial harassment on the scale that was suffered by the complainant in this case at the hands of his workmates... to slip through the net of employer responsibility by applying to it a common law principle evolved in another area of law to deal with vicarious liability for wrongdoing of a wholly different kind. To do so would seriously undermine the statutory scheme of the Discrimination Acts and flout the purpose which they were passed to achieve.

The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words 'in the course of employment' in the sense in which every layman would understand them... The application of the phrase will be a question of fact for each industrial tribunal to resolve, in light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort."

The logic behind Tower Boots suggests that an employer could - depending on the facts - be liable for the racial harassment conduct of his employees should it occur during working time, but would not be liable for any harassment that occurs outside of the contractual hours[f7].

De Vere Hotels.

A further example of the courts extending the notion of liability, beyond the concept of control found in the traditional approach to vicarious liability, can be found in the EAT judgement of Mrs Justice Smith in the case of Burton and Rhule v DeVere Hotels [1996] IRLR 596. In this case an employer was found liable for the discriminatory acts of a third party (for whom the employer cannot be vicariously liable) because the Hotel Manager "subjected" an employee to conduct - with prior knowledge or experience of the type of material - which amounted to racial harassment and in circumstances where he "could have prevented the harassment or reduced the extent of it". Indeed, the third party in question was the entertainer and comedian Bernard Manning, a guest speaker at a Round Table dinner, who subjected two black waitresses at the hotel to racial remarks - such as "wog", "nigger" "sambo" with comments like "very good that's how I like my cocoa" and "darkies are good at giving blow jobs". Interestingly, it was not just the racially offensive words of Bernard Manning that caused a problem, with it being evident that one of the dinner guests had been stirred up to continue the racist mood, after the dinner, by asking Miss Rhule "what a black women's vagina was like".

The irony of this case is that the racist "jokes" of Bernard Manning, although often racially offensive, do not normally provide grounds for legal action against Manning. This applies because the criminal law does not penalise racial offence, with legislation requiring any words used to be 'threatening, abusive and/or insulting'[f8] - with an intent/likelihood for fear of violence[f9]/harassment[f10] or racial hatred[f11] - for a prosecution to succeed[f12]. What is more, the two barmaids are unlikely to have a civil means of redress against Bernard Manning personally - i.e. unless the words used amounted to a defamation of character[f13] - because the Race Relations Act 1976 makes no provision for an individual victim of racial abuse to bring a case against any person other than an employer or the provider of goods, facilities, premises and services to the public.

Since racial discrimination laws establish no differential between verbal and written materials, the De Vere Hotels case also highlights the fact that an employer could be liable for the distribution of written materials that establish racial harassment. This raises the possibility - by analogy - that an employer who permits the distribution of racially offensive British National Party[f14] literature within the workplace could be liable should one of his employee's feel that he is subjected to racial harassment as a result of the content of the BNP material. Again, we would have the situation applying that the BNP author/publisher of the literature will almost certainly be immune from liability or prosecution - notwithstanding that such material may stir up racial discrimination or hatred.

An organisation's liability for racial harassment to its customers?

The De Vere Hotels case also opens up the possibility that an organisation could face a County Court claim in relation to liability for racial harassment experienced by a person other than a member of staff - namely one of its customers. Let us consider the position of a black, or ethnic, customer enjoying a meal at the Hotel while Bernard Manning is making his racist remarks, with Manning directing some of his racially offensive humour towards them[f15]. Under s.20 of the Race Relations Act 1976 - assuming the Hotel permit the incident with knowledge of the type of material to be given[f16] - there seems to be no reason why the Hotel could not become liable for racial harassment since it is providing goods, facilities and/or services to the public (its customers) and it subjects the customer to racial harassment in circumstances where they may be able to prevent or reduce the extent of it (e.g by asking Manning in advance to avoid the use of racially offensive material). Likewise if, by analogy, we extend this principle to that of a Manager of a Sheltered Housing Scheme which provides a service to elderly residents[f17]. Should s/he subject ethnic residents to racial harassment, by permitting the BNP to distribute racially offensive material, then her/his employer organisation - and not the BNP - could be liable in any claim.

Possibly there exists a danger that this article could be criticised for stretching the notions of liability too wide - in that the liability of an employer to his customers, compared to that which he holds to his employees, is bound to be more remote. However, while remoteness is of relevance to liability, the case law suggests that a critical feature is 'prior knowledge' combined with the 'permitting' of a person to be subjected to racial harassment - i.e. 'in circumstances where the organisation could have prevented or reduced the extent of it'. Indeed, this argument is indirectly supported by James v Eastleigh which demonstrates that case law applicable in situations of goods facilities and services is synonymous with that applicable in employment situations.

Obviously, in all racial harassment cases much depends upon the facts and surrounding circumstances of the particular case. However, the case of De Vere Hotels does highlight the need for the management of organisation's - whether in the private or public sector - to consider the implications of permitting the distribution of racially offensive material. Indeed, any benign motive of the organisation is essentially irrelevant to a finding of discrimination - since there is no defence of justification for direct racial discrimination or harassment[f18].

In Conclusion.

Consequently, the advice is clear. If you're in a position of authority within an organisation and someone asks if they can distribute racially offensive material it would be wise to be cautious before you give permission. For, should racial harassment ensue then it seems that your organisation - and not those who have published/distributed the material - could be held liable for any racial harassment experienced by its employees or customers.

Footnotes:

1 See s. 7(3) of the Protection from Harassment Act 1997.

2 Or 'but for' the race of the complainant.

3 See Painter, Holmes and Migdal, Cases and Materials on Employment Law at page 255. (published Blackstone Press Limited 1995).

4 [1995] IRLR 529.

5 See Hepple and Matthews - 'Tort Cases & Materials' published Butterworths 1991 at page 805.

6 See 'Racial Harassment at Work' by Daniel Barnett NLJ [1995] 1614. In this article, Barnett makes this point by arguing that if in order to establish prima facie liability it has to be shown that the act was part of conduct actually authorised (whether grossly or impliedly) by the employer, then the employer would never be able to set up the defence that he had taken all reasonable steps to prevent it (since prevention is inconsistent with authorisation).

7 Say for example: racial harassment that occurs when employees are having a drink in a bar after work.

8 See sections 4, 4a and 5 of the Public Order Act 1986. The same pre-requisite of threat, abuse and/or insult, together with the intent/likelihood of stirring up racial hatred, is also required under Part III of the same Act.

9 See s.4 of the Public Order Act 1986 for specific details.

10 See sections 4a and 5 of the Public Order Act 1986.

11 See Part III of the Public Order Act 1986.

12 It seems unlikely that the actions of Manning could amount to harassment - and an offence as per s.2 of the Protection from Harassment Act 1997 (this is by way of example only since the incident pre-dated the legislation). This applies because under the PHA 1997 the conduct must occur on at least two occasions. Quite whether two or more 'jokes' - told in the course of one dinner speech - amounts to conduct on at least two occasions is not totally clear from the legislation. However, given that the legislation (section 2) refers to a 'course of conduct' it seems reasonable to argue that the dinner speech itself amounted to a single course of conduct. That being the case - since there was only one dinner speech in question - it seems probable that Manning would not have fallen foul of the Protection from Harassment Act 1997 since there was only one course of conduct.

13 They may have a case for defamation. However, with no legal aid, the legal costs involved mean that few people - other than those who are reasonably wealthy - can afford to pursue a court action.

14 The BNP are used as an example only. This illustration could equally apply to material distributed by the National Front or any similar organisation.

15 The customer could get up and leave the Hotel/Restaurant due to the harassment. But this would not alter the fact that they may have been racially harassed - with an issue of liability still a possibility.

16 In De Vere Hotels the Manager admitted direct prior knowledge of a Bernard Manning presentation.

17 There are thousands of Sheltered Housing Schemes in both the public and private sector, with those who distribute BNP material often asking the Scheme Manager for permission to deliver leaflets to residents. Given the need for a "wide and purposive" interpretation of the legislation so as to tackle racial discrimination and harassment it seems unlikely this form of general service provision should fall within the special care exemptions under s. 23(2) of the Race Relations Act 1976.

18 It could though effect the amount of compensation awarded.

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