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12th November 2019

Further developments in relation to harassment

Harassment claims continue to make the headlines. Over the last couple of weeks, the EAT has re-affirmed that employers will not generally be liable for third party harassment of their employees unless the employer’s own conduct is related to a protected characteristic. The EHRC has also issued guidance on the use of confidentiality agreements when settling discrimination, harassment and victimisation claims.

Bessong v Pennine Care NHS Foundation Trust involved a racial harassment claim brought by a mental health nurse who worked in a secure residential unit. He was assaulted by a patient in a racially motivated attack. He subsequently brought several claims against the employer, including for harassment on the basis that a failure to ensure that staff reported all incidents involving racial abuse by patients led to a hostile working environment for him. The tribunal rejected that claim because the employer's failure to ensure universal reporting of racist incidents was not itself related to race. The employee appealed, arguing that the employer's inaction did not have to be related to race for his harassment claim to succeed.

The EAT upheld the tribunal's decision. The Race Directive and other Equality Directives do not require member states to make an employer liable where it has failed to prevent foreseeable harassment of employees by a third party. In any event, it would not be possible to read words into the Equality Act that would impose such an obligation on employers. The tribunal was also bound by the Court of Appeal's decision in Unite the Union v Nailard that to be liable for third party harassment, the employer's conduct or inaction that is said to amount to harassment must itself relate to a protected characteristic.

Although the EAT commented that liability for third party harassment in certain circumstances has much to commend it, the tribunal was correct to find that there was no liability in this case. However, the legal position may change before long – the government's recent consultation on sexual harassment in the workplace indicated that it intends to amend the Equality Act to provide protection against third-party harassment.

How far it is permissible for employers to use confidentiality clauses in the context of settling harassment or discrimination claims has also generated a great deal of debate recently. The EHRC has now issued guidance on the use of confidentiality agreements in relation to harassment and discrimination cases. Amongst a variety of other recommendations, the guidance suggests that it would be good practice to:

  • Consider on a case by case basis whether a confidentiality provision is required;
  • Use wording that does not go beyond what is necessary and appropriate in light of the circumstances of the case;
  • Inform workers of the justification for using a confidentiality clause;
  • Ensure that workers are allowed to disclose information to regulators, the police, medical professionals who are bound by confidentiality obligations, legal and tax advisers, HMRC, immediate family members, trade unions and potential employers if necessary for discussing the circumstances in which their employment terminated;
  • Include two-way confidentiality obligations that impose obligations on the employer to keep matters confidential as well as the employee.

The guidance also suggests that it would be good practice for an employer to pay a reasonable amount for an employee's legal advice on a settlement agreement, even if they ultimately decide not to sign it.

The guidance is not a statutory code of practice, so employment tribunals and courts are not obliged to take it into account. It could however be used as evidence in legal proceedings if it is relevant to the issues at stake.