We recommend that the definition of racial harassment under the race equality legislation is amended to prohibit unwanted conduct ‘related to’ racial grounds which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. We also recommend that this definition of harassment applies to all racial grounds; namely, race, ethnic or national origins, colour and nationality.
Rationale for change
Currently, harassment under the race equality legislation is defined as unwanted conduct ‘on the grounds of ’ race or ethnic or national origins which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment .
Our recommendation is in line with the definition of harassment under the Race Directive which refers to an unwanted conduct “related to” racial or ethnic origin.
It is of note that in the sex discrimination case of R (Equal Opportunities Commission) v Secretary of State for Trade and Industry, the court held that the definition of harassment under the sex equality legislation, which defined harassment as unwanted conduct ‘on grounds of’ a woman’s sex, did not accord with the requirements of the amended Equal Treatment Directive.
The amended Equal Treatment Directive defines harassment as unwanted conduct ‘related to the sex of a person’. It will be noted that the Race Directive prohibits racial harassment in substantially the same terms as the amended Equal Treatment Directive.
Importantly, the court was of the view that effect of the wording of the definition of harassment within the amended Equal Treatment Directive meant that an employer could be held liable on appropriate facts for the conduct of third parties, for example, suppliers or customers. In particular, it considered that an employer could be held liable for failing to take action where there is a continuing course of offensive conduct, which the employer knows of but does nothing to safeguard against.
As a result of this decision, the definition of harassment under the sex equality legislation in Northern Ireland was amended to prohibit unwanted conduct that is ‘related to’ a woman’s sex or that of another person.
Further, our recommendation is in line with the definition of harassment under the sex equality legislation in Northern Ireland, as well as those changes implemented in Great Britain under the Equality Act 2010
As highlighted above, we also recommend that this revised definition applies to all racial grounds; so that it applies not just to race, ethnic or national origins, but also on the grounds of colour and nationality; as the statutory definition of harassment does not apply to these grounds.
We recommend that the race equality legislation is strengthened so that there is greater protection for employees against racial harassment by a third party, such as, by a customer or client of an employer.
Our recommendation reflects the need for stronger duties on employers to take action in light of the clear evidence that black minority ethnic employees are being subjected to racial harassment by customers/clients.
For example, 'BAYANIHAN! The Filipino Community in Northern Ireland', a report produced by the Northern Ireland Council for Ethnic Minorities (NICEM) in 2012, reports that 44.4% of Filipino healthcare workers surveyed had been racially harassed by customers/service users.
In addition, as highlighted in the NICEM report, Filipinos on a Work Permit/Tier Two find it particularly difficult to challenge harassment experienced in the workplace because their right to work and reside in Northern Ireland is dependent upon employment.
In particular, the report argues that “they cannot move to another firm, nor are they likely to be in a position to take a case against their employer”. This highlights the vulnerability of particular BME employees and the need for the race equality legislation to effectively protect them against harassment
We recommend that employers are liable if they fail to take reasonably practicable steps to prevent the racial harassment of an employee by a third party. We further recommend that employers are liable if they know that the employee has been subjected to third party harassment on one previous occasion, or in circumstances that they ought to have been reasonably aware of the risk of third party harassment.
Whilst we supported the introduction in the sex equality legislation of a clear duty on employers to take reasonably practicable steps to prevent employees being subjected to third party harassment, we do not agree that the employee should have to wait until the third incident of harassment before an employer is required to take action.
We support the views of the Joint Committee on Human Rights that the threshold requirement, which provides that employer liability only applies where the employer knows that the same employee has been harassed on two prior occasions, “could be seen as permitting employers excessive leeway before they are required to respond to third party harassment”.
We recommend that this requirement should either be reduced to one previous incident or replaced with a provision that an employer will be liable when they ought to have been reasonably aware of the risk of third party harassment.
Whilst this increased protection against harassment by third parties had been included in Great Britain under the Equality Act 2010, the UK Government has recently repealed this provision. Its reasons for repealing this provision include the fact that very few cases of third party harassment have been taken to an employment tribunal since the protection was introduced in April 2008 under the sex equality legislation.
It contends further there are other means of redress available to employees subjected to third party harassment; such as the ability to bring proceedings against his/her employer for breach of contract, or against the harasser under the Protection from Harassment Act 1997. The UK Government has indicated that the policy objective behind repealing this provision is to reduce any regulatory burden on employers that the third party harassment provisions may impose.
It is of note that a report by the Liberal Democrat Task Force on Race Equality in 2013 criticised the repeal of this provision and made it clear that the Task Force was ‘well aware of the need for ethnic minority workers particularly in public facing roles to have this protection” and that “employers looking after their staff properly should have no reason to oppose this protection”.
As set out above, we believe that there is evidence of third party racial harassment of employees. In addition, while the Protection from Harassment Act 1997 enables an employee to bring a claim of harassment against a customer of their employer, the employer is not liable for the harassment under this Act.
Finally, it will be noted that the UN Committee on CERD expressed concern about the UK Government’s Red Tape challenge. The Red Tape Challenge included scrutiny of measures envisaged under the Equality Act 2010 designed to prune those legislative provisions deemed as “bureaucratic or burdensome”.
The Committee indicated that it threatened “to dilute or reverse the State Party’s achievements in the fight against racial discrimination and inequality”. It recommended that the UK Government implemented all of the provisions of the Equality Act and ensure there is no regression from the current levels of protection.