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Third-party Harassment

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Should section 26(1) of the Equality Act 2010 be interpreted so as to impose liability on an employer for third-party harassment against employees?

No, held the EAT in Bessong v Pennine Care.

The Claimant was assaulted on racial grounds by a patient, in circumstances where his employer had failed to prevent and/or protect him against such harassment. However the employer's failings were not themselves related to race.

On appeal it was argued that Article 2(3) of the Race Directive requires Member States to outlaw third-party harassment where the harassment was foreseeable and preventable, without a requirement that the employer's failures were themselves 'related to' race.

Dismissing the appeal, the EAT held the Directive does not impose liability on an employer where its conduct or inaction is unrelated to race.

Thanks to Assunta Del Priore of Nine St John Street Chambers for preparing this case summary.