No joke going beyond the pale
29 October 1996
30 September 2013
5 March 2014
18 February 2014
17 September 2013
Repeal of third-party harassment provisions is not the end of the story for employers, says Hogan Lovells
30 September 2013
In September, the Employment Appeals Tribunal ruling that a hotel's management was liable for racist comments made by comedian Bernard Manning about two Afro-Caribbean waitresses made national paper headlines. But in the sensationalised publicity surrounding the case it was easy to lose sight of the fact that the ruling had great legal significance.
It was a landmark ruling in respect of the general accountability of those, such as hotel managements, for the behaviour of those they bring in to work for them but who are classed legally as 'third parties' rather than staff members.
The two waitresses at the centre of the case, Freda Burton and Sonia Rhule, were working at Derby's Pennine Hotel during a Derby Round Table dinner attended by around 400 people. During the course of the evening Manning threw in jokes about the sexual ability and organs of black men.
He also made racially offensive remarks about the two waitresses and it was considered that this encouraged other guests at the evening to abuse them further .
The upshot of the evening has been a drawn-out and complex race discrimination battle - which could yet go on to the Court of Appeal and further - in which the waitresses took on De Vere Hotels, which manages the Pennine.
In November last year, Nottingham Industrial Tribunal held that De Vere could not be held responsible for the comments of someone employed on the basis Manning was employed on, and therefore that they were not guilty of discrimination. However, that decision was overturned by the Employment Appeals Tribunal. Chair, Mrs Justice Smith, decided De Vere was accountable and had sufficient control over the situation to have prevented harassment or at least reduced it. As things stand the matter is to be remitted to the original industrial tribunal for compensation to be assessed. However, solicitor Makbool Javaid of the Commission for Racial Equality, who handled the case for the women, says the implications of the ruling are important and stretch beyond the circumstances of the immediate case.
"It provides a clear warning to employers about their obligations to protect their staff against racial harassment at work," he says. "It emphasises the accountability of employers in respect of the actions of third parties. It is clear cut that an employer is accountable for the actions of a member of its staff.
"Until this case an employer's accountability in respect of third parties had been far from clear. There was no precedent. Now we have a ruling which clarifies the matter.
"This case says clearly that if an employer controls a working environment and is in a position to prevent someone, whether they are a member of staff or not, from doing something such as happened here, then they can be held liable.
"Where, for instance, an employer has knowledge that racial harassment of an employee is taking place, or deliberately or recklessly closes his eyes to it, if he does not act reasonably to prevent it, he will be found to be directly liable."
Javaid stresses that the case was "very daunting" for the two waitresses concerned but he says that after the humiliation they were put through they were determined to see their claim through to the end.
The case for the women was argued at the EAT by QC Laura Cox, who was called in because of her experience in handling discrimination claims.