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21st July 2011

Public Sector Employer Liable for Third-Party Harassment

Public Sector Employer Liable for Third-Party Harassment

In Sheffield City Council v Norouzi the Employment Appeal Tribunal (EAT) upheld a tribunal’s decision that a public sector employer, which in the tribunal’s view did not do enough to protect a social worker from regular racial harassment at the hands of a child in a care home, was liable for indirect race discrimination and race harassment under the Race Relations Act 1976 (‘RRA 1976’) and the EC Race Directive.

The Claimant, Mr Norouzi, who was of Iranian origin, worked for Sheffield City Council as a residential social worker at a children’s home. One of the children (child A), who was at the home from July 2006, was regularly offensive to Mr Norouzi on racial grounds. She told him to go back to his own country, stated that she would like to blow up Asia and all Asians, and mocked and mimicked his accent. In June 2008, Mr Norouzi went on long-term sick leave. He brought indirect race discrimination and race harassment claims against the council.

Mr Norouzi argued that the council had applied four “practices” (within the meaning of the RRA 1976) which placed him and other non-British staff at a particular disadvantage and were not justified, namely:

  • Letting racist behaviour by residents persist by not investigating racist abuse and harassment that took place.
  • Letting racist behaviour by residents persist by not adequately challenging and taking sufficient remedial steps against such behaviour by residents.
  • Letting racist behaviour by residents become “normalised”.
  • Not having support mechanisms in place for staff who have been victims of repetitive racist abuse and harassment by residents.

It should be noted that although it was clear that some of child A’s conduct towards Mr Norouzi satisfied the definition of harassment in the RRA 1976, at the initial hearing he did not succeed under the RRA 1976 harassment provisions because:

The council did not itself engage in conduct “on grounds of race” within the meaning of the RRA 1976, as race was not the reason for any failure to take action.

The council was not vicariously liable under the RRA 1976 for child A’s conduct.

Given this, Mr Norouzi also relied on the EC Race Directive, which he could do so on the basis that the council was a public sector employer and was therefore directly liable for a failure to comply with EC legislation (otherwise known as “direct effect”).

The Employment Tribunal found the following:

The council did not intervene sufficiently following an incident on 28 December 2007. This demonstrated that the council was “letting racist behaviour persist by not investigating incidents and not adequately challenging [child A]”. By now the council was “allowing racist behaviour to become normalised”.

In an “individual work report” produced in February 2008, the council identified child A’s racially abusing Mr Norouzi as an issue. At that point, the council was on notice that more effective measures were required. It should have dealt with further incidents of racial abuse more proactively than it did.

Mr Norouzi raised the issue of the racial abuse at a meeting on 7 April 2008. It was clear that any further incidents would be unacceptable to him. This was “the final warning” for the council to do something about child A’s behaviour. Further, the council should have put more effective support mechanisms in place for Mr Norouzi.

Given these findings, the Employment Tribunal upheld Mr Norouzi’s harassment and indirect discrimination claims. The council subsequently appealed to the EAT.

The EAT dismissed the council’s appeal.  Although it acknowledged that there are environments, such as prisons, care homes and some schools, where employees might be subjected to harassment that cannot easily be prevented. In its view, “the employer should indeed not too readily be held liable for conduct by third parties which is in truth a hazard of the job; and if it is to be held liable on the basis that insufficient steps were taken to protect the employee in question a tribunal must be prepared to focus on what precisely could have been done but was not done”.

The EAT found that although the tribunal’s findings as to what steps the council should have taken were not as explicit as they might have been, it clearly had in mind the steps highlighted by Mr Norouzi in his arguments. These included having a policy covering such situations, discussing the incidents with Mr Norouzi and giving him support and guidance, and working with child A through various channels with a view to modifying her behaviour. Therefore, the EAT rejected the council’s appeal on this point.

In addition, the council had pointed out that child A would have mocked any strong accent she detected in those working with her if she thought this would rile them. In its view, therefore, child A’s behaviour in mocking Mr Norouzi’s accent was not racially motivated and therefore was not racial harassment as defined by the RRA 1976.  However, the EAT held that this argument was misconceived. Accordingly, it held that to mock a racial characteristic seemed to be analogous with overtly racial abuse.

The EAT accepted that some employers are in a difficult position with regard to third-party harassment, going as far as suggesting that in some sectors such harassment is “a hazard of the job”. It commented that where this is the case, an employer should not automatically be found liable unless the tribunal precisely identifies steps that it should have taken. According to the tribunal, one of the steps that the council should have taken was to discuss the racial abuse with Mr Norouzi and give him support and guidance. However, while this is not a step that would have prevented the harassment from taking place, it is advised that employers in similar situations should do as much as they can in this regard.

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