Nurse wins discrimination claim but loses over harassment

A mental health nurse who was subjected to abuse by patients has won a claim of indirect race discrimination by his employer.

However, his claim for harassment was rejected by the Employment Tribunal.

Colleridge Bessong, from Africa, worked for Pennine Care NHS Foundation Trust (2019) at a secure residential unit.

In 2017 he was seriously assaulted by a patient who also racially abused him. The patient had a history of racist behaviour towards black members of staff.

Bessong brought claims for discrimination and harassment against the trust.

The tribunal found several failings on the trust’s part, including that it had indirectly discriminated against Bessong by failing to ensure that all staff reported each incident of racial abuse by patients on an incident report form.

It found that this failure had contributed to an environment in which racial abuse from patients was more likely to occur, and the confidence of staff to challenge such behaviour was impaired by the perception that management was not taking the issue as seriously as it should, thereby constituting a disadvantage for non-white staff.

However, it rejected the harassment claim on the basis that, although the trust’s failure over incident reporting represented unwanted conduct, that inaction was not itself “related to” race in a way that would bring it within the scope of harassment under the Equality Act 2010.

The Employment Appeal Tribunal has upheld that decision. It acknowledged that the harassment claim was important because it could lead to a greater level of compensation than the indirect discrimination claim.

However, the Equality Act required that an employer’s conduct or inaction had itself to be related to race in order to give rise to any liability for third-party harassment.

In other similar cases, the Court of Appeal had made it clear that the negligent failure to prevent another party’s discriminatory acts was very different to liability for one’s own acts.

If you would like more information about the issues raised in this article or any aspect of employment law please call Joanne on 01228 516666.

By Joanne Stronach Head of Employment Law and HR