Conteh v Parking Partners Ltd

The 1976 Race Relations Act (RRA) defines harassment as unwanted conduct which has the purpose or effect of “creating” an intimidating or hostile environment. The Employment Appeal Tribunal (EAT) has said in Conteh v Parking Partners Ltd that a company could not be held liable for harassment if had not “created” the hostile environment in which it took place.

Basic facts

Ms Conteh, who is black, worked alone as a car park attendant beneath a residential development called St George’s in South London for Parking Partners Ltd.

The marketing staff for St George’s did not have to pay to use the car park, but instead had to have their tickets validated by a machine. On the evening of 14 March 2009, the machine refused to validate the ticket of a member of staff. Ms Conteh had been told not to let anyone leave the car park without a valid ticket, so refused to open the barrier.

The next day, another member of the marketing staff turned up at Ms Conteh’s office and allegedly made a series of abusive and racist comments, which included calling Ms Conteh a “fucking stupid black African bitch”. In a further incident that evening, two marketing staff members deliberately blocked the exit barrier for about 15 minutes whilst shouting at Ms Conteh.

Ms Conteh complained to her manager. He viewed the CCTV footage which showed the incident (albeit without sound) and could see that she  had not reacted to having a finger jabbed in her face. He decided not to take action, however, because he was concerned that St George’s would ask for Ms Conteh to be removed from her job. Instead he changed the system so that the tickets no longer had to be validated.

Ms Conteh complained of direct racial discrimination and racial harassment on the ground that her manager had not spoken to her about the new system and had effectively failed to investigate her complaint.  

Relevant law

Section 1 states that it is direct discrimination to treat anyone “less favourably” than someone else on “racial grounds”.

Section 3A states that it is harassment to engage in unwanted conduct which has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.

Tribunal decision

The tribunal, however, did not agree. It said that although the steps taken by the manager were not entirely satisfactory, he would not have done anything different had the complaint been made by a white female member of staff about racial or non-racial abuse. Ms Conteh had not therefore been treated less favourably.

As for the claim of harassment, it said that as the company had not “created” the hostile environment in which the harassment took place, it could not be held vicariously liable for the actions of a third party over which it had no direct control.

EAT decision

The EAT accepted that inaction on an employer’s part could amount to creating an intimidating, hostile, degrading, humiliating or offensive environment.  However, on the facts of this case it was a third party who had created the hostile environment rather than the employer, and so they were not liable. In any event, the manager’s inaction had nothing to do with the fact that Ms Conteh was black.

As for the claim of direct discrimination, it was clear from the tribunal’s findings of fact that the manager’s inaction had nothing to do with Ms Conteh’s race. Whatever the nature of the abuse, “he would have taken the same lack of action to the extent that he did”.


This case was decided under the Race Relations Act 1976 which has no specific provisions making employers liable for harassment of their employees by third parties. If it had been decided under the Equality Act (effective from 1 October 2010), by contrast, the employer could well have been held liable if the harassment had occurred at least twice and they had failed to take reasonably practicable steps to prevent it.