Liability for harassment by non-employees

Liability for harassment by non-employees Andrew Hogarth QC & Tim Petts CPD Ref: AVV/CHRW 12 King s Bench Walk, Temple, London EC4Y 7EL, Tel: 020 7583 0811, Fax: 020 7583 7228, Video Conferencing: 020 7583 4190 E-mail: chambers@12kbw.co.uk, Website: www.12kbw.co.uk, DX 1037 Chancery Lane 1

Liability for harassment by non-employees 1. Introduction. 1.1 This short seminar will attempt to consider the circumstances in which an employer may be found liable to an employee of theirs who has been harassed by a third party. It is therefore examining situations in which the employer has no vicarious liability for the actions of the harasser. To an extent this is a talk about employment law given to an audience of PI practitioners. However, the purpose of it is not only to emphasise the need to consider whether the client has an alternative, and better, cause of action, but also to consider whether the existence of new duties under the Equality Act 2010 may be used to extend the circumstances in which an employer will be liable for acts of third parties when they would not previously have been held liable. First it is necessary to provide some basic information about the nature and extent of the duty under the Equality Act 2010. Until the passing of the Sex Discrimination Act 1975 (Amendment) Regulations 2008 (SI 2008/656) reg 4, an employer was liable for acts of harassment by third parties. These regulations amended the Sex Discrimination Act 1975 from 6 April 2008, and imposed liability on an employer if: (a) and a third party subjects the woman to harassment in the course of her employment, (b) the employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. But the duty does not arise unless: the employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party. 1.2 It will be appreciated that this imposes a substantial obligation on an employer. The third party does not have to be the same individual on each occasion, the only requirement is that the acts of harassment have to be acts of sex discrimination and when such a claim is brought the employer s defence can only be made out if he takes such steps as would be reasonably practicable. Reasonable practicability is a high standard. The Equality Act 2010 extended this protection to all of the major types of unlawful discrimination.1 Section 40 of the Act extended liability in line with the already existing sex discrimination legislation. Section 40(2) provides: 1 But marriage and civil partnership and pregnancy and maternity are not included as protected characteristics 2

The circumstances in which A is to be treated as harassing B under subsection (1) include those where (a) a third party harasses B in the course of B's employment, and (b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. (3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B's employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion. 1.3 The last part of s 40(3) serves to emphasise the width of the duty imposed by the employer. 1.4 Thus the provisions of the Equality Act have introduced a very onerous code for the prevention of harassment of employees by third parties. Protection against harassment by a third party is no longer actionable only if it arises on the grounds of sex, but is now extended to any protected characteristic. It follows that the decisions in MacDonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield Secondary School [2003] UKHL 34, [2003] IRLR 512, [2003] ICR 937 and Conteh v Parking Partners Ltd, all of which were race discrimination claims, have been overruled by statute and a position close to the decisions of the EAT Burton and Rhule v De Vere Hotels[1996] IRLR 596, [1997] ICR 1, has been introduced by statute. 1.5 In Burton and Rhule the comedian Bernard Manning was the guest speaker at an event and the claimants were waitresses who were understandably upset by his racist and sexist conversation. The EAT imposed liability on the employer concluding that they unreasonably failed to remove the waitresses from the room as soon as it became evident what was happening. 1.6 The Equality Act is not the only anti harassment legislation and we also have to remember the provisions of the Protection from Harassment Act 1997. In the field of personal injury litigation harassment claims under the Protection from Harassment Act 1997 have become very popular in recent years. The reason is not difficult to find. In Hatton v Sutherland the Court of Appeal seriously restricted the ability of an employee to win many stress at work claims. 1.7 It was apparent to the Court of Appeal that judges regarded foreseeability of stress as being the same as foreseeeability of injury. The Court of Appeal did not agree with this view concluding that foreseeability of injury was required and that foreseeability of stress alone was not sufficient. Hale LJ was not prepared to accept that stress by itself constituted an injury and preferred the view that forseeability of stress alone was insufficient, and that the courts should consider only foreseeability of actual injury. 3

1.8 The second area in which the Court of Appeal concluded that judges were applying existing principles incorrectly was in the assumption that foreseeability of injury on its own was not just a necessary criterion for liability, but a sufficient criterion for liability. The test of foreseeability has two parts, the second of which is often overlooked. There has to be a foreseeable risk of injury against which the employer should protect his employee, the second part of the test permitting wider policy considerations to be introduced. Hale LJ delivering the judgment of the Court of Appeal said: Mr Hogarth, on behalf of the appellant defendant in the Barber case, has pointed to several differences between this and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work. These are in addition to the general differences between physical and psychiatric disorders discussed earlier. (2) The employer is or should be largely in control of the workplace equipment and physical conditions in which the work is done. He is much less in control of the way in which many of his employees, especially professionals or those who are expected to prioritise their own tasks, choose to do their work and balance the demands of their work and life outside the workplace. (3) The employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum. But responsibility both for causing and for doing something about its psychological risks may be shared between many people, family, friends and the individual himself, as well as the employer. 1.9 By emphasising the lack of control as the primary justification for applying a less generous test for the imposition of liability the result was that employees sought a cause of action which did not depend upon foreseeability of injury and which imposed a strict duty. The answer was to bring a claim under the Protection from Harassment Act 1997. What we will see is how the courts have considerably extended the scope of this statute and now that the Equality Act has extended the scope of liability by imposing liability for the acts of others will we now see liability for the acts of third parties being imposed upon an employer even when the harassment is not on account of a protected characteristic. If an employer can potentially be liable if his employee is called a black bastard why should he not also be liable if his employee is called a bastard. 1.10 In order to see how the courts may widen the scope of liability it is necessary to examine how they done so in the past in respect of harassment under the 1997 Act. Which act to use? 4

3.1 Limitation under the 1997 Act is six years. The claim is not a personal injury claim for the purposes of limitation 2 so there is no right to extend time beyond six years. 3.2 It is possible to obtain an injunction under the 1997 Act. 3.3 It is not necessary to be an employee under the 1997 Act. 3.4 There is no definition of harassment under the 1997 Act. 3.5 The 1997 Act, except where a threat of violence is involved requires a course of conduct. The 2010 Act simply requires there to be two instances of harassment. 3.6 The 1997 Act imposes vicarious liability 3 which means that an employee or agent has to be liable before the employer can be liable. 3.7 Subject to an exception in the case of employees acting in concert the course of conduct relied upon has to be by the same person under the 1997 Act whereas s. 40(3) of the 2010 Act does not require the acts of harassment to be by the same person. 3.8 The 1997 Act does not require the victim to be in the course of his/her employment when harassed; rather it requires the harasser to be in the course of their employment. The 2010 Act requires the victim to be in the course of his/her employment but does not require the harasser to be in the course of their employment. 3.9 The reason for the harassment does not have to be for a protected characteristic under the 1997 Act but can be for any reason or no reason. 3.10 It is possible to mix acts of harassment which are for a protected reason with acts that are not under the 1997 Act but not the 2010 Act. 4 3.11 The 2010 Act requires the employee to prove that the employer knew of the previous acts of harassment before imposing liability for a third Act of harassment. There is no requirement to the same effect in the 1997 Act and provided that it is possible to prove a course of conduct by a servant or agent the employer is vicariously liable for the tort irrespective of whether he knew of the misbehaviour or not. What are the issues under the 2010 Act? 3.1 The first key issue under both statutes is what amounts to actionable harassment and what does not. This is a topic which has caused very considerable controversy under the 1997 Act over the past 5 years, but it is now reasonably clear what can amount to 2 See s.11 PHA 1997. 3 See Majrowski v St Thomas Hospital NHS Trust 4 Rayment v Ministry of Defence. 5

harassment under that Act and although the 2010 Act does actually contain a definition it does not really deal with the issue of how serious something has to be before it amounts to harassment. It follows that the cases under the 1997 Act provide some guidance as to the dividing line between actionable and non actionable harassment. Where is the dividing line between the sort of behaviour one has to put up with and the sort of behaviour which gives rise to a claim? 3.2 The second key issue is that under the 2010 Act the employer has a defence which is not available under the 1997 Act. Under s 40(2) (b) of the 2010 Act the employer has a defence if it has taken such steps as would have been reasonably practicable to prevent the third party from harassing the employee. Where is the dividing line to be drawn? 4.1 The 1997 Act was intended to control anti-social behaviour was interpreted very widely in order to stop such behaviour. as such behaviour should be stopped. However, if it is interpreted very widely and is combined with a provision granting a civil cause of action, then almost anything can give rise to liability. The result is that courts, having enthusiastically used the act to prevent all sorts of miscellaneous bad behaviour, then found themselves confronted with the problem of deciding how to deal with the civil clams they have also apparently created, because there is no need to prove that an injury was foreseeable in order for damages to be recovered under the statute; all that has to be proved is a course of conduct amounting to harassment. 4.2 The probability is that the courts will find themselves confronting very similar difficulties when deciding where the line is to be drawn between third party behavior for which the employer is liable and that for which he is not. 4.3 The starting point was the Court of Appeal s decision in Majrowski v St Thomas and Guy s Hospital NHS Trust. 5 (Auld LJ, May LJ and Scott Baker LJ). The trial judge had heard argument on a preliminary issue, whether or not the employer could be vicariously liable for harassment under the 1997 Act. Auld LJ and May LJ decided that the employer could be vicariously liable. Scott Baker LJ disagreed in the main as a result of his view that the Act conferred rights which effectively circumvented all the guidelines in Hatton, Hartman etc. May LJ expressed sympathy with this view but then went out of his way to set out why he thought Scott Baker s concerns were not valid. In essence he said that a very high level of misconduct was necessary before a claim could be advanced under the Act. 4.4 May LJ said at paragraph 82: in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be 5 [2005] IRLR 340. This case was subsequently appealed to the House of Lords who reached the same conclusion on vicarious liability but they did not discuss the nature of the liability. 6

oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress. Employees may be distressed, and understandably so, by managerial conduct which, for instance, being properly and reasonably critical of an employee's poor performance, is entirely within the proper and reasonable scope of the manager's functions and duties. 83. There are other features of the 1997 Act which, in my view, tend to confine what a reasonable person would think amounted to harassment. Section 2 provides that a person who pursues a course of conduct in breach of section 1 is guilty of an offence punishable by imprisonment or a fine or both. This should colour any appreciation of conduct which amounts to harassment. It would, I think, reinforce the view of a reasonable person that harassment is serious conduct calculated to produce the consequences described in section 7(2) and which is oppressive and unreasonable. The reasonable person should also understand from section 3 that an actual or apprehended breach of section 1 can sustain, not only a claim for damages, but also an injunction, granted in the High Court or county court, restraining the defendant from pursuing any conduct which amounts to harassment. Alleged breach of an injunction may lead to arrest and, if the breach is established, the defendant is guilty of an offence. This again colours, so as to confine, any appreciation of conduct which amounts to harassment. Of course, a person who alleges harassment can pursue a civil claim for damages without recourse to criminal or injunctive remedies. But the same conduct sustains the criminal and injunctive remedies. In the civil context, the court will be alive to this fact when considering whether what is alleged really does amount to harassment. These considerations may not readily enable a court to strike out a claim without hearing evidence, but they do circumscribe the possible ambit of such claims. 6.3 This statute was intended to control anti-social behaviour was interpreted very widely in order to stop such behaviour. as such behaviour should be stopped. However, if it is interpreted very widely and is combined with a provision granting a civil cause of action, then almost anything can give rise to liability. The result is that courts, having enthusiastically used the act to prevent all sorts of miscellaneous bad behaviour, now find themselves confronted with the problem of deciding how to deal with the civil clams they have also apparently created, because there is no need to prove that an injury was foreseeable in order for damages to be recovered under the statute; all that has to be proved is a course of conduct amounting to harassment. 7

6.17 The starting point is the Court of Appeal s decision in Majrowski v St Thomas and Guy s Hospital NHS Trust. 6 (Auld LJ, May LJ and Scott Baker LJ). The trial judge had heard argument on a preliminary issue, whether or not the employer could be vicariously liable for harassment under the 1997 Act. Auld LJ and May LJ decided that the employer could be vicariously liable. Scott Baker LJ disagreed in the main as a result of his view that the Act conferred rights which effectively circumvented all the guidelines in Hatton, Hartman etc. May LJ expressed sympathy with this view but then went out of his way to set out why he thought Scott Baker s concerns were not valid. In essence he said that a very high level of misconduct was necessary before a claim could be advanced under the Act. 6.18 May LJ said at paragraph 82: in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress. Employees may be distressed, and understandably so, by managerial conduct which, for instance, being properly and reasonably critical of an employee's poor performance, is entirely within the proper and reasonable scope of the manager's functions and duties. 83. There are other features of the 1997 Act which, in my view, tend to confine what a reasonable person would think amounted to harassment. Section 2 provides that a person who pursues a course of conduct in breach of section 1 is guilty of an offence punishable by imprisonment or a fine or both. This should colour any appreciation of conduct which amounts to harassment. It would, I think, reinforce the view of a reasonable person that harassment is serious conduct calculated to produce the consequences described in section 7(2) and which is oppressive and unreasonable. The reasonable person should also understand from section 3 that an actual or apprehended breach of section 1 can sustain, not only a claim for damages, but also an injunction, granted in the High Court or county court, restraining the defendant from pursuing any conduct which amounts to harassment. Alleged breach of an injunction may lead to arrest and, if the breach is established, the defendant is guilty of an offence. This again colours, so as to confine, any appreciation of conduct 6 [2005] IRLR 340. This case was subsequently appealed to the House of Lords who reached the same conclusion on vicarious liability but they did not discuss the nature of the liability. 8

which amounts to harassment. Of course, a person who alleges harassment can pursue a civil claim for damages without recourse to criminal or injunctive remedies. But the same conduct sustains the criminal and injunctive remedies. In the civil context, the court will be alive to this fact when considering whether what is alleged really does amount to harassment. These considerations may not readily enable a court to strike out a claim without hearing evidence, but they do circumscribe the possible ambit of such claims. 6.18 Majrowski was heard by the House of Lords and in the course of the judgments which dealt almost entirely with the issue of vicarious liability Lord Nicholls dealt with the reservations expressed by the Court of Appeal. He said: Where the claim meets that requirement, and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. Conn v Sunderland City Council. 6.19 These early indications that the Court of Appeal intended to take a restricted view of the ambit of the Act were not entirely borne out by their decision in Conn v Sunderland City Council, an appeal which the defendants won, but which they could have won more comprehensively had the Court of Appeal wished to take a hard line against the alleged victim in such cases. 6.20 In Conn v City of Sunderland the Court of Appeal faced the issue of how serious conduct had to be before it amounted to harassment for the first time. Conn may best be described as a case about bad relationships in the workplace. The foreman and the claimant did not see eye to eye and neither party appears to have been blameless. The trial judge dismissed the claimant s claim in negligence against the employer. However, he found that two incidents amounted to harassment under the 1997 Act and awarded a modest sum by way of damages. On one occasion the manager threatened to punch a window and to bring a group of employees before the personnel department after they refused to tell him who had been leaving work early. On the other occasion the manager had demanded to know why Mr Conn was refusing to talk to him, and when Mr Conn told him that he would only speak to him on work matters, the foreman lost his temper and threatened to give Mr Conn a hiding. 6.21 In their judgment the Court of Appeal expressed very strong views about the use of the 1997 Act and made it clear that they disagreed strongly with the view that trivial incidents of what they considered to be bad mannered behaviour gave rise to criminal penalties or to a civil claim for damages. All three judges were satisfied 9

that the first of the incidents could not amount to harassment. Ward LJ expressed himself most forcefully in a passage which will join Lord Hobhouse s judgment in Tomlinson v Congleton BC on the wall of every insurer. He said, What on earth is the world coming to if conduct of the kind that occurred in the third incident can be thought to be an act of harassment, potentially liable to giving rise to criminal proceedings punishable with imprisonment for a term not exceeding six months, and to a claim for damages for anxiety and financial loss? It falls so far short below the threshold that we are in my judgment fully entitled to interfere with the judgment of the recorder, even though he had the benefit of seeing the witnesses and judging the facts as they appeared before him. The conduct here [does] not come close to harassment and I would therefore allow the appeal, set aside his order, and enter judgment: dismiss the claim of the claimant for damages in its entirely. The other judges agreed with Lord Justice Ward s view that the first incident could not amount to harassment. 6.22 Veakins v Kier Islington Ltd. It was thought that the test for deciding whether a particular act or series of acts amounted to harassment under the 1997 Act was simply to ask, in a sort of palmtree justice fashion, whether the behaviour was such that one would expect to see it in a Magistrates Court or not as criminal offence and, if it was the sort of charge one would see there it also amounted to the civil tort of harassment. In three cases, the latest of which is Veakins, the Court of Appeal has moved away from that view. The other cases are Allen v London Borough of Southwark [2008] EWCA Civ 1478, paragraph 9 and Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacob LJ at paragraphs 17-19, but they are adequately quoted in Veakins. In Veakins the Court of Appeal made clear that the approach described at the start of this paragraph was a misunderstanding and that the test for harassment established by the House of Lords in Majrowski by Lord Nichols and Lady Hale was whether the behaviour was oppressive and unreasonable. If it was oppressive and unreasonable it satisfied the criminal test. 6.23.The second element of the tort dealt with in Veakins is more obvious but was clearly expressed for the first time in this judgment; that the motivation of the alleged harasser was important in determining whether an act amounted to harassment or not. Perhaps importantly for many cases the Court described what they felt amounted to malice in paragraph 16. They said, I find it impossible to escape the conclusion that Mrs Lavy s extraordinary conduct must have been motivated by a desire to do whatever she could to force out an employee for whom she had a profound personal dislike. I have a copy of Mrs Veakins witness statement and to my mind it is all pretty trivial stuff and the only thing it really shows was that Mrs Lavy could not stand the sight of Mrs Veakins. 7. 1 How wide can it go? It seems clear that the courts have shied away from their initial view that some sort of criminal standard should be imposed before something was considered to 10

amount to harassment. Indeed the recent cases reveal some quite startling decisions on the part of the courts as to what is capable of amounting to harassment. 7.2 The mother in-law. In Singh v Bhakar 7 the claimant was a young Sikh woman who had undergone an arranged marriage with a Hindu man. She went to live in his family s house where she met her mother in law. She was a paradigm of the awful mother in law. In addition to various religious discourtesies she heaped work on her daughter in law, making her sweep the house almost continuously and generally treating her like the resident slave. She left the house and her husband and then sued the mother in law for harassment. The court had no difficulty in deciding that she had been harassed and awarded her a total of 35,000. 7.3 The over zealous computer. In Ferguson v British Gas 8 British Gas appealed against the High Court s refusal to strike out the claim for unlawful harassment. Mrs F used to be a customer of British Gas, but when she switched to another company, they sent her several bills which she claimed were unjustified. She received letters threatening to cut off her supply, to start legal proceedings against her, and to report her to credit rating agencies. She contacted them several times by letter and by phone, but the bills and threats continued. Mrs F claimed that British Gas s course of conduct amounted to unlawful harassment contrary to the Protection from Harassment Act 1997. The Court of Appeal declined to strike the claim out. They said things had to be fairly severe before the law, civil or criminal, would intervene. However, they concluded that at the very least, it was strongly arguable that B's conduct was capable of satisfying the test of gravity. 7.4 The incompetent housing Department. In Allen v London Borough of Southwark 9 the local authority issued five sets of proceedings against their tenant for possession all of which were doomed to failure as the tenant was not refusing to pay his rent simply demanding to pay it as he was contractually entitled to at a local housing office. On an application to strike out the claim under the 1997 Act the Court of Appeal concluded that it was arguable that the behaviour was oppressive, unreasonable or unacceptable. 8.1 A potential control mechanism available under the 2010 Act. In Majrowski Scott-Baker LJ had been concerned that employers would be facing unduly wide liability in the event that vicarious liability was imposed. Under the 2010 Act they are liable not simply for their own employees or agents over whom they can be expected to have a greater degree of control but for any passer by who chooses to mouth some discriminatory phrase at their staff. This is a real problem.as it only has to happen twice for the employee to have a claim. 8.2 The wording of the statute itself does not provide much hope for employers, or does it? The phrase used is a little old fashioned and is usually interpreted somewhat 7 Gina Satvir Singh v (1) Prithpal Singh Bhakar(2) Dalbir Kaur Bhakar. Dep Judge Armstrong QC 8 [2009] EWCA Civ 46 9 [2008] EWCA 1478. 11

strictly when an application is submitted out of time. It looks like a version of the reasonable steps defence which was seldom successful against discrimination claims. However there is a difference in that practicable is a word related to the possibility of being able to do something and with non employees the scope for doing something is often distinctly limited as there is no ability to control the customer or visitor. 9. The American experience. In the United States third party harassment has been in place for some years and as a result the basis for imposing liability on an employer has become more apparent.. The American body responsible for implementation of the legislation, the EEOC, produces guidelines which an employer is expected to adhere to. The employer is liable for the acts of harassment of another, not liable for the harassment itself, but typically for their failure to deal with it. In determining whether the employer took immediate and appropriate corrective action, the Compliance Manual directs investigators to ascertain: 1. What action, if any, was taken; 2. When it was taken; and 3. Whether it fully remedied the conduct without adversely affecting the terms or conditions of employment in some manner (for example, by requiring the employee to work less desirable hours or in a less desirable location). 9.2 The decision in Lockard v. Pizza Hut is a good example of the American approach in action. In that case, the plaintiff was a waitress and she informed her manager that she did not like waiting on two regular male customers of the restaurant. The men had made sexually crude remarks to her, although the court record did not contain evidence that she told the manager the reason for her discomfort or that she ever relayed to the manager the substance of their remarks. One evening the men entered the restaurant and the waiting staff, including a number of young men, argued over who would seat them because no one wanted to serve them. The manager ordered the plaintiff to wait on the men. While ordering, one of the men said she smelled good and grabbed her by the hair when she refused to tell him what perfume she was wearing. She informed the manager of the incident and asked if someone else could wait on the men. The manager denied the request, adding You wait on them. You were hired to be a waitress. You waitress. When she returned to the table, one of the men pulled her to him by the hair, grabbed her breast, and put his mouth on her breast. The plaintiff quit. She had worked in the restaurant only two months. 12

The root of the franchisor s liability was the poor response of its manager. Prior to the sexual assault, the plaintiff had informed the manager of the hair-pulling incident and had also told him on three occasions that she did not wish to serve these customers. Receipt of this information triggered the manager s obligation to respond adequately and promptly. Instead, the manager put the plaintiff in an abusive and potentially dangerous situation, although he had the means and the authority to avoid doing so by ordering a male waiter to serve them, waiting on them himself, or asking them to leave the restaurant. 9.3 In an interesting commentary on cases won by plaintiffs the EEOC said, There's a case in which the plaintiff was a lobby attendant, and she was required to wear as a condition of her employment a poncho. It was pretty skimpy, open at both sides, and she wasn't allowed to wear a blouse, skirt, or other garment under the poncho. The uniform revealed her buttocks. She complained it was subjecting her to harassment--lewd comments and suggestions--frankly, what people may expect to happen wearing that kind of uniform. When she notified her employer that she was being subjected to this harassment, she was told no exceptions to the uniform would be granted. She refused to wear the uniform and was discharged. The court found the employer discriminated against her based on violation of Title VII, because it required her to wear the uniform when it in fact knew it was subjecting her to this harassment The broader imposition of liability outside any statutory scheme. 2.1 What has become clear in the last few years is the much broader approach to the imposition of liability on an employer for events which are wholly or mainly the result of the actions of others. The employer is under a duty to protect its employees from the actions of others when those actions create a foreseeable risk of injury. The extent of that duty is debatable but it is accepted that an employer is responsible for taking precautions to reduce the impact of the activities of others at least to the extent of providing equipment to protect against the actions of outsiders and to provide training to the employee to enable them to respond appropriately to the acts of others. A policeman is entitled to a knife proof vest and a fireman to protective overalls. More recently the psychiatric impact of the acts of others has come under greater scrutiny and it is clear that an employer is potentially liable to the extent of his ability to control a state of affairs. 2.2 This line of cases which deal with various forms of physical protection against the acts of third parties have been used to impose liability in other circumstances including harassment. 2.3 In Connor v Surrey CC 10 the Court of Appeal considered the claim of a white head teacher who had been subjected to what amounts to a campaign of intimidation by some Muslim governors of her school. In the face of this campaign they did nothing. 10 [2010] I.R.L.R. 521; 13

Laws LJ said, It feared the charge of racism and, no doubt, of prejudice against Islam. The council's capitulation to these sombre pressures was lamentable. The consequence was a serious neglect of their duty to the claimant who was in the firingline of these assaults, and was also the council's employee. The trial judge had had no difficulty in finding the employers liable in negligence. However, the only action which they could have taken involved them in exercising one of their statutory powers to remove the governors and to appoint an interim board in their place. The Court of Appeal rejected the argument that the employer could not be compelled to or found liable for failing to exercise a statutory discretion to take such action. 2.4 To my mind the significance of Connor decision lies not in the context of the exercise of statutory powers but in the total acceptance by the judge and the Court of Appeal that their behaviour had to be considered by reference to what they were able to do. In a way this is the same point as was made by Hale LJ in Hatton when pointing out that the employer s duty of care had to be considered in the context of what it could know of the state of an employee s mind. 10. Conclusions. 10.1 Where will we end up? 10.2 Early in this talk we looked at the reason why Hale LJ in Hatton felt that a less employee favourable test should be applied in stress at work cases. Part of the legal justification for such a step was the form of the test for liability in tort. There has to be a foreseeable risk of injury against which the employer should protect his employee. Now that the 2010 Act recognises an obligation to take really quite onerous step[s to protect an employee and decisions like Connor accept that there is such a duty the only issue is how widely the courts will impose liability. The way in which they have widened liability under the 1997 Act leads one to suspect very strongly that they will widen liability considerably in the near future. It does seem to us that the obligations imposed upon an employer will be more onerous than the relatively gentle obligation imposed the Bernard Manning case of asking the offended staff to leave. I am not sure that Burton s case will be the high water mark of an employer s duty and it should be noted that the failure to take this simple step was all that was required to allow the employees to succeed, so it does not provide a definitive guide to the extent of an employer s obligation in other situations. In short if someone has a cause of action for being called a black bastard why should they not have a similar cause of action for being called a bastard? ANDREW HOGARTH QC TIM PETTS 14