Bessong v Pennine Care NHS Foundation Trust
This case highlights some of the ways in which a Tribunal will consider a claim for direct and indirect discrimination as well as harassment.
For more information or to speak with Roy Magara, a specialist employment lawyer, please call 01869 325 883 or email roy@magaralaw.co.uk.
Mr Bessong, the Claimant, was a black man who worked as a mental health nurse for Pennine NHS Trust, the Respondent. The Respondent operated a secure residential unit for males sectioned under the Mental Health Act.
The Claimant alleged that he was the victim of a racial assault by one of the Respondent’s patients. Briefly, he stated that he was punched several times and the patient used a pen as an improvised knife. The patient was heard shouting racial abuse as well as threatened to stab Mr Bessong.
The Claimant suffered facial injuries and received hospital treatment. The Claimant also reported the incident to the police. The Respondent filed an incident report about the assault but no mention was made of the racist comments. It also transpired that the patient responsible for the assault had a history of racially abusive behaviour. Furthermore, many of the Respondent’s black staff felt the reporting was not followed up and was pointless.
The Claimant commenced Employment Tribunal Claims following grievances which were not upheld by the Respondent. His claims were for direct and indirect race discrimination together with harassment on the grounds of race. The direct claim focused on the Respondent’s failure to mitigate the threat posed by the patient in question. The indirect claim centred on the Respondent failing to ensure all racist incidents were reported on the incident form.
The harassment claim was twofold. Firstly, that failing to protect the Claimant was a form of harassment. Secondly, failing to report the incident was a form of harassment. The ET allowed the indirect discrimination claim but it rejected everything else. It held that the Respondent did not enforce its policy that staff should report every racist incident.
In rejecting the claims for direct discrimination and harassment, the ET was of the view that the conduct of inaction on racist abuse was not related to race but due to the Respondent’s own administrative failings.
The Claimant appealed citing the EU race directive which stated that harassment merely needed to take place not that it needed to relate to race. The EAT, however, rejected this appeal. The EAT held that the ET had been right to find that the Respondent’s inaction was unrelated to race and on proper construction of the EU directive the conduct must be related to race.
The ET may have also taken a narrow approach here. It is unclear how the conclusion was reached that the inaction on race issues was not related to race. It is indeed arguable that the EU Directive does not restrict the legislation as much as the ET did. Nonetheless, it is a helpful case for those seeking to bring such claims to consider the scope within which the ET (or EAT) will base their decision.
For more information or to speak with Roy Magara, a specialist employment lawyer, please call 01869 325 883 or email roy@magaralaw.co.uk.
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