Channel 4 is on shaky legal ground in Big Brother racism row

One doesn’t have to be a fan of Celebrity Big Brother to be familiar with the issues that have dominated the media concerning alleged racism in the house and the extent to which Endemol and Channel 4 have created hostility between the contestants to boost flagging viewing figures.

The allegedly racist remarks made by Jade Goody and other contestants will be only too familiar to many involved in race discrimination claims. To what extent do the contestants, Endemol and Channel 4 need to consider the threat of legal action arising from such incidents?The Race Relations Act 1976 makes it unlawful for an employer to subject an employee to racial harassment. It is at least arguable that the contestants could be considered employees of Endemol or Channel 4 under the act.

The definition of employment under the act includes “a contract personally to execute any work or labour”. This is wider than under the Employment Rights Act 1996, which is limited to individuals working under a service contract or apprenticeship.

If the housemates are considered to be employees, Shilpa Shetty could argue that she has been harassed on the basis of her race, colour and nationality by Goody and other housemates, and that Endemol or Channel 4 are vicariously liable. Comments by Goody and fellow housemate Danielle Lloyd that Shetty should “go back to the slums”, referring to her as “Shilpa Poppadom” (Goody) or “the Indian” (Goody’s mother) appear to demonstrate at least subconscious racism.

The fact that Goody is mixed race and denies any intention to offend on racial grounds is no defence. It is frequently the case that alleged harassers in race discrimination claims genuinely do not consider that they are racist and deny any intention to humiliate or degrade a colleague on account of their race.

What a tribunal needs to consider is whether the victim of alleged harassment has been treated less favourably on account of their race, colour or nationality. Asking an Indian colleague whether they live in a shack (as Shetty was asked) is indisputably racist. Channel 4’s initial contention that no racism had occurred, as this was just ‘girly bitching’ or class-based bullying, represents either wilful ignorance or naiveté on race issues.

Even if the conduct of Goody and some of her fellow housemates was not racially motivated, most would agree that it was bullying and harassment. Endemol and Channel 4 have possible statutory and common law obligations to protect contestants from suffering bullying and harassment that go beyond the normal level of conflict on which the show is based. Employment law has established that an employer has a duty of care not to cause psychological harm. The key question is whether the harm suffered was reasonably foreseeable in relation to the particular employee. Foreseeability depends upon what the employer knew, or ought reasonably to have known, about the employee.

Celebrity Big Brother aficionados will remember Vanessa Feltz suffering something akin to a nervous breakdown during the first series of the show, raising questions about Endemol’s and Channel 4’s liability for psychological harm.

Endemol and Channel 4 will undoubtedly assess the psychological make-up of potential contestants. They will, therefore, have a fairly high level of awareness of the mental state of a contestant and how they may respond to the conflicts within the house.

In view of the 24-hour filming and ongoing assessment of the psychological state of housemates, it would be difficult for Endemol to argue that it was not aware of any deterioration in a housemate’s condition. The fact that a housemate may be particularly vulnerable to a psychological condition would not represent a defence.

Endemol and Channel 4 will no doubt be well aware of these issues and will have taken measures to protect themselves from liability. Whether exclusion clauses in contestants’ contracts would preclude claims for bullying and racism is debatable.

To maintain ratings figures, the show requires controversy to maximise media coverage and remain at the epicentre of popular culture. However, this month’s events have demonstrated that a fine line exists between being noticed and remaining within the realms of acceptable behaviour.

Ultimately, reputational damage is likely to prove a more effective deterrent to a repeat of such actions than the threat of legal proceedings.