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Under our current laws, workers can bring claims for harassment against their employer and fellow employees. Harassment means where dignity is violated and an intimidating, stressful or hostile environment is created.
The harassment may be a on-off act or numerous acts. It can be physical threats of violence or verbal abuse. It may be racist or sexual in nature. For example, touching someone or giving them compliments that make them uneasy.
The law currently provides protection against harassment from fellow employees, but there is no protection if third parties cause the harassment.
Examples of third parties in a work situation could be:
- Business contacts at a conference.
- Customers in a restaurant, shop, or bank.
- Clients of solicitors and accountants.
In Mallet-Ali v Perth and Kinross Council, a tribunal had to decide if a school’s failure to prevent a teacher from being subjected to racist abuse by its students, was due to its own discrimination.
This article looks at the facts of this case and considers whether the outcome would have been different if the proposed law on third party harassment had been in force.
Mrs Mallet-Ali worked as a teacher in a school run by the local authority. Her nationality was Scottish (and she spoke with a Scottish accent). Her ethnicity was Pakistani.
Some of her students mimicked an Indian accent when talking in her class and used a racist term. Overtime, the number and frequency of these incidents increased. She complained after each incident and the school, in line with its ethos, which focused on restorative practice rather than discipline, dealt with the pupils by talking to them and their parents about their inappropriate behaviour and asking them to apologise to Mrs Mallet-Ali.
Mrs Mallet-Ali didn’t think that the school were doing enough to prevent the abuse or to protect her. She wanted the pupils in question to be excluded from her class and for the incidents to be treated as hate crimes and dealt with under criminal law. The school did report the later incidents to the policy as ‘hate crimes’ and sought guidance from them about how to deal with these sorts of racist incidents. But they were unable to exclude pupils from her class, in part due to guidance issued by the Scottish government.
Mrs Mallet-Ali became ill with stress and was signed off work. She raised a grievance and, when that wasn’t upheld, she resigned claiming that her relationship with the school’s leaders had broken down and that it was unsafe for her to return to work.
She argued that the school had subjected her to direct discrimination in the way it had dealt with the situation.
The tribunal rejected her claims. It accepted that the pupils’ behaviour towards Mrs Mallet-Ali was racially motivated. But that wasn’t enough for her to win a direct discrimination claim. She also had to show that her employer had treated her less favourably than it would treat others because of her race. She either had to point to a real comparator or demonstrate that her employer would have treated a hypothetical one in a different way.
Mrs Mallet-Ali couldn’t identify an actual comparator and the tribunal decided that the school would have treated a hypothetical comparator (which it identified as a white teacher subjected to discriminatory language or behaviour by pupils) in the same way.
Changes in the law
This case demonstrates how difficult it is for employees to bring successful claims against their employers for the discriminatory behaviour of third parties. The law is hopefully going to change. The Worker Protection (Amendment of Equality Act 2010) Bill is currently making its way through parliament and, once enacted, will impose liability on employers for this type of harassment.
The new law will allow employees to be able to bring harassment claims relating to a single incident and employers will only be able to escape liability if they have taken all reasonable steps to prevent the harassment.
If this Bill had been in force, Mrs Mallet-Ali would have been able to rely on the actions of the pupils without needing to demonstrate that her employer had dealt with her concerns in a discriminatory way. That doesn’t necessarily mean she would have won: the tribunal would have to focus on whether the steps the school took to prevent pupil’s from harassing her met the threshold for the ‘reasonable steps’ defence to kick in.
The question of what amounts to ‘all reasonable steps’ will depend on the circumstances. More is expected of an employer that has had problems in the past with harassment. The Equality and Human Rights Commission’s Code of Practice on Employment suggests that reasonable steps are likely to include:
- implementing and raising awareness of an equality policy
- providing equal opportunities training to staff, and
- dealing effectively with employee complaints.
Tips for Employees
Although I don’t expect the law to come into force until 2024, I recommend that you raise any issues of harassment and bullying you have faced (whether the harasser is an employee or third party) and put in place a strategy to tackle it head on.
- Raise the issues with your line manager and ask them to tackle the harassment.
- If that does not work, raise a formal grievance.
- Consider negotiating a settlement – this may involve you leaving employment but only if you receive appropriate compensation.
- Be mindful of time limits. You only have 3 months less one day from the date of the harassment to lodge a claim and not weaken your bargaining power.
If harassment isn’t tackled it can cause unnecessary stress and ill-health. It can also mean you are not doing as well in your job as you should be.
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