Samantha Mangwana, principal lawyer (partner), employment, Russell Jones & Walker
Government wasting its time on discrimination changes
23 May 2012 | Updated: 23 May 2012 12:19 pm
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The current assault on long-established discrimination laws isn’t good for business and is probably unlawful.
The proposals to abolish protections against third-party harassment in particular are baffling: these laws are about protecting the most vulnerable from the most sickening conduct at work. The government has already been told UK legislation is defective without these protections, and accepts that compliance doesn’t create any additional legal burdens for employers. So, what on earth are they playing at?
While the term “third party harassment” probably doesn’t mean much, other than to discrimination lawyers, the origin of this law goes back to the notorious 1996 “Bernard Manning case”, where black waitresses were subjected to grotesque, lewd and racist humiliation in his stand-up routine, as they worked.
Jokes were made about the sexual organs and abilities of black men and women, using words that cannot be printed here because they are too racially and sexually offensive for publication. Further such insults and ‘jokes’ were aimed directly at the waitresses as they served, about their own sexual potential by reference to their colour. This led in turn to harassment of the waitresses by the hotel’s guests, in the form of racially offensive come-ons and physical sexual advances by alcohol-fuelled punters, apparently given licence by the performance laid on for them.
Following these incidents, the assistant manager of the hotel intervened, and apologised to the black waitresses for what had happened. The Employment Appeal Tribunal (EAT) decided however that this was not good enough. Although the harassment the waitresses endured was not conducted by their employer, but by a third party ’entertainer’ and guests/customers of the employer, the hotel was liable. The waitresses had to attend work and do their job; they had no choice in the matter. In contrast however, their employer had been in a position to take basic simple steps, like vetting the performance, to prevent them being placed in such a ‘prejudiced atmosphere’ - yet failed to do so.
When people understand the type of conduct involved, it hardly seems a controversial decision. Most of the public would be likely to agree that employees shouldn’t have to endure being taunted with racism or sexually harassed at work when their employer could take steps to stop it.
Although as a result of this test case, third party harassment was in principle actionable (in race discrimination cases at any rate), it simply existed as case law, at EAT level. 10 years later, in 2006, the High Court ruled that the absence of a legislative provision addressing third party harassment made UK discrimination law defective under European law. The government needed to amend it, and did so in the Equality Act, passed in 2010, which for the first time expressly confirmed that third party harassment is actionable against the employer.
It seems bizarre enough for the Home Office to contemplate repealing this provision, when it has been pointed out that to do so would be a breach of European law. But do they really think someone should not have protection from discrimination if sexually assaulted at work by a contractor or customer?
In practice, this specific provision doesn’t tie up Tribunal time significantly anyway. In the scheme of things, not many cases are actually brought for racial, sexual, religious, homophobic, or disability harassment alone. The cost to employers of taking steps to protect their staff from harassment at work is not significant. But the human cost of failure to do so can be tragic in the extreme. The television brings us dreadful news of disability and homophobic hate crime in our society - resulting at times in suicide and death. As a discrimination lawyer specialising in acting for individuals, my own caseload has included harassment resulting in suicide attempts by my clients (both as a result of face-to-face and cyber-bullying). Is anyone seriously suggesting that staff should have to endure such treatment at work?
So these proposals won’t save costs for employers, won’t save tribunal time, and the government has already been told they’re unlawful. They will however send a message that the most vulnerable should not be protected from the most perverted and sickening conduct at work. Can we spend parliamentary time on something else, please?