Race discrimination: Extension of employers’ liability for harassment

Date of judgement: February 15, 1997

In Jones v Tower Boot Co Ltd 11.12.96 Court of Appeal, the Court of Appeal holds that the words “in the course of employment” in the Race Relations Act should be interpreted in the sense in which they are employed in everyday speech, and not restrictively by reference to the principles laid down by case law for establishing an employer’s liability for the torts committed by an employee during the course of his or her employment. Accordingly, the employer in this case was liable for serious verbal and physical abuse of an employee by two of his work colleagues. It was not necessary for the racially abusive acts to be connected with authorised acts in order for the employer to be liable for them.

Section 4(2)(c) of the Race Relations Act 1976 (the RRA) makes it unlawful for an employer to discriminate against an employee on racial grounds by “subjecting him . . . to any detriment”. In a case of harassment between work colleagues, however, it is not the employer who is the harasser. Liability for the acts of the harasser can only be imposed on the employer vicariously. Section 32(1) of the RRA regulates this by providing: “Anything done by a person in the course of his employment shall be treated for the purposes of this Act . . . as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval”. Section 41(1) of the Sex Discrimination Act 1975 contains a parallel provision. But s.32(3) of the RRA and s.41(3) of the SDA allow an employer to escape liability if it can prove that it “took such steps as were reasonably practicable to prevent” the employee from doing the discriminatory act.

The case reported in this article raises the crucial question of when acts of racial (or sexual) harassment fall within the harasser’s “course of employment” so as to impose legal liability on the employer.

Want to see more?

For full access to Race discrimination: Extension of employers’ liability for harassment and more, sign up to a HR and Compliance Centre subscription today.