The law states that there is harassment when conduct “related to” a protected characteristic creates a hostile or offensive environment for a worker. In BDW Trading Ltd v Kopec, the Employment Appeal Tribunal (EAT) confirmed that in cases of third-party harassment, the employer also has to have a discriminatory motive.
Mr Kopec, a Polish man who identified as heterosexual, worked as a concierge for a block of flats managed by BDW Trading Ltd.
In December 2016, he was racially abused by a delivery driver. Although his manager, Ms Lane, was shocked by the abuse, she partially blamed Mr Kopec for being unhelpful. Indeed, he had already been identified by the company as needing to improve his “softer skills”. In June 2017, he was racially abused by another driver who also made a homophobic remark about him. Ms Lane acknowledged the driver’s rudeness but again took the view that Mr Kopek had made the situation worse.
She decided that a formal process was needed because Mr Kopec was not prepared to discuss his contribution to these incidents. At a disciplinary hearing, he was given a verbal warning and told that he would be subject to an "informal capability improvement plan". However, he was then suspended for sending a text message to the driver involved in the second incident, asking him to “tell the truth” about what had happened.
Mr Kopac then resigned. Although his employer accepted his resignation, they treated his complaints as a grievance which they went on to reject. Likewise, they failed to uphold his appeal against the verbal warning.
He brought tribunal claims for constructive unfair dismissal, direct discrimination on the grounds of his age, race and apparent sexual orientation; and harassment “related to” his age, race and apparent sexual orientation.
The tribunal upheld Mr Kopec’s claim for constructive unfair dismissal on the basis that the company had breached the implied term of trust and confidence. Not only had they shown a complete lack of awareness of the seriousness of the abuse, they had also failed to read or take note of their own equality policies. Although the verbal warning did not, in and of itself, amount to a breach of trust and confidence, it was procedurally unfair as they failed to call a relevant witness who supported what Mr Kopec had said.
With regard to his claims for direct discrimination, the tribunal found that, as his employer had effectively failed to deal with his allegations of racial and homophobic treatment, the burden of proof shifted to BDW to provide a non-discriminatory explanation. It dismissed his claim on the basis that the employer would have disciplined and suspended a hypothetical comparator in the same circumstances.
However, the tribunal upheld his claim of harassment on the basis that his employer had failed to protect him from racist and/or homophobic abuse which created a hostile and degrading work environment.
BDW appealed, arguing that the tribunal was wrong in law to conclude that it had subjected Mr Kopec to harassment perpetrated against him by third parties when it had already expressly found in his claim of direct discrimination that the employer was not motivated by his race when disciplining him.
The EAT noted the tribunal had not considered the judgment in Unite the Union v Nailard which held that an employer could only be liable for third party harassment if the reason for the employer’s failure to take action to protect the worker violated their dignity or created a hostile, degrading, humiliating or offensive environment. The fact that the conduct of the third party was related to a protected characteristic was not enough.
On that basis, it concluded that the tribunal had not properly applied the burden of proof test to the employer and remitted the matter to the same tribunal for further consideration.
This is yet another case (see Bessong v Pennine Care NHS Foundation Trust, weekly LELR 650) which shows the difficulties in establishing an employer’s liability for third party harassment in the absence of an explicit provision as previously existed under section 40 of the Equality Act 2010. In July 2019 the government consulted on new third-party harassment provisions - it is now time that these new provisions are introduced.