Bessong v Pennine Care NHS Foundation
Gray v Mulberry Company (Design) Ltd
The case of Bessong v Pennine Care NHS Foundation Trust serves as a clear reminder that employers are only liable for a third party’s harassment towards their employees where the employer’s action (or inaction) relates to a “protected characteristic”, such as race.
Bessong v Pennine Care NHS Foundation Trust concerned a distressing incident at Pennie Care NHS Foundation Trust (“The Trust”), whereby Mr Bessong, a black African mental health nurse, was assaulted by a patient. The patient punched him eight times and held a pen as a weapon, while making a racist comment and announcing “I’m going to stab you now”. Having suffered facial injury, Mr Bessong went to hospital. The Trust made an incident report but omitted to mention the racial element of the assault.
Mr Bessong brought claims of race discrimination and racial harassment. The Employment Tribunal held that The Trust had failed to take adequate steps to ensure that staff reported every incident of racial abuse by patients on an incident reporting form. Many of Mr Bessong’s black colleagues perceived reporting every single racist incident to be pointless. The Employment Tribunal upheld Mr Bessong’s indirect discrimination claim but dismissed his direct discrimination and harassment claims.
Under the Equality Act 2010, a person may suffer harassment when they experience unwanted conduct related to a relevant “protected characteristic” (e.g. race), which has the purpose or effect of either violating their dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment. In Mr Bessong’s case, the Employment Tribunal found that The Trust’s failure to create a culture where all racist incidents were formally reported, contributed to an environment in which racist abuse from patients was more likely to occur; and this constituted unwanted conduct. However, it held that this unwanted conduct was not “related to” race, so the Equality Act definition of harassment was not met.
Mr Bessong appealed, and the case went to the Employment Appeal Tribunal (“EAT”).
The Equality Act definition of harassment reflects the wording used to define harassment in EU discrimination directives, including the Race Directive (2000/43/EC). The Directive defines racial harassment as where “unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment” (Article 2(3)).
Basing his argument on Article 2(3) of the Race Directive, Mr Bessong’s barrister reasoned that the employer’s action or inaction did not need to relate to race because the Directive defines harassment as when “unwanted conduct related to racial or ethnic origin takes place”. Therefore, it did not matter whether the employer engaged in conduct “related to” race, it was enough that a third party did so. In turn, Mr Bessong’s barrister argued that the employer did not need to perform acts of racial harassment to be liable, but that the employer would be liable for such acts simply because they were done within the sphere of occupation and working conditions.
The Honourable Mr Justice Choudhury (President), sitting alone in the EAT, disagreed. He held that the intention of the Race Directive is to prohibit unwanted conduct related to race; it does not impose liability when the conduct is not related to race. Thus, the fact that The Trust had failed to create a culture where all racist incidents were formally reported did not render it liable for racial harassment, because this failure was not itself related to race.
The EAT considered other EU law but found nothing to justify making The Trust liable to Mr Bessong for the patient’s harassment. The EAT also noted that it was, in any event, bound by the Court of Appeal’s decision in Unite the Union v Nailard [2018], which confirms that the Equality Act does not explicitly impose liability on employers for failure to prevent third party harassment.
When an employee’s refusal to sign a copyright agreement resulted in her dismissal, she claimed that she had suffered discrimination based on her belief. Her unsuccessful claims were addressed in Gray v Mulberry Company (Design) Ltd.
Gray v Mulberry Company (Design) Ltd involved Ms Gray, who was employed as a market support assistant by luxury handbag designer, Mulberry. Outside of work, Ms Gray engaged in work as a writer and film maker.
Ms Gray was asked to sign a contract of employment containing clauses relating to confidentiality and inventions, improvements and patterns. She was also asked to sign a separate copyright agreement. Ms Gray signed the contract of employment but refused to sign the copyright agreement because she felt that the intellectual property obligations in the agreement could extend to her artistic activities outside work. Ms Gray was dismissed by Mulberry for refusing to comply with the conditions of her employment.
Ms Gray brought Employment Tribunal claims for direct and indirect discrimination on the grounds of the following belief: “the statutory human or moral right to own the copyright and moral rights of her own creative works and output, except when that creative work or output is produced on behalf of an employer”.
The Employment Tribunal applied the guidance given by the EAT on what can be considered a philosophical belief for the purpose of the Equality Act 2010 in Grainger plc and others v Nicholson [2010]. This includes a requirement that the belief must attain a sufficient level of cogency, seriousness, cohesion and importance. The Tribunal found that Ms Gray’s asserted belief was not sufficiently cohesive to form any cogent belief system.
Moreover, it held that Ms Gray’s indirect discrimination claim would have failed in any event. As part of an indirect discrimination claim, the claimant must show that the respondent applied a provision, criterion, or practice (“PCP”) to them, with their “protected characteristic” (in this case, belief), as well as to persons who do not share that characteristic. The claimant must also demonstrate that the PCP puts or would put persons with whom the claimant shares the protected characteristic at a particular disadvantage when compared to others without the protected characteristic. Here, Ms Gray had failed to establish that Mulberry’s PCP of requiring all employees to sign the copyright agreement put other people sharing her belief at a particular disadvantage.
Ms Gray appealed, and the case went to the EAT. The EAT agreed that Ms Gray’s asserted belief was not cohesive enough to form any cogent philosophical belief system, so the Grainger criteria were not met.
The EAT also rejected the contention that there should be no requirement for the claimant to establish group disadvantage in an indirect religion or belief discrimination claim, so as to give effect to Article 9 of the European Convention on Human Rights (“ECHR”). Article 9 of the ECHR provides that everyone “has the right to freedom of thought, conscience and religion” and that “freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. In turn, the Human Rights Act 1998 requires UK courts to interpret legislation in a way that is compatible with the ECHR as far as possible.
However, the EAT held that, to establish indirect discrimination, it had to be possible to make some general statements that would be true about a group, so that an employer should reasonably be able to appreciate that a particular provision might have an adverse impact on the group. Where only one person followed a philosophical belief, and were unable to establish any group disadvantage, they could not succeed in a claim of indirect discrimination.
Ms Gray appealed again. The case went to the Court of Appeal, where the three judges unanimously dismissed the appeal. Although the Court reached the same conclusion as the EAT, it considered the case differently. The Court thought that whether Ms Gray’s belief was of a philosophical nature was irrelevant, because it didn’t put Ms Gray at a disadvantage. In fact, the reason why Ms Gray had refused to sign the copyright agreement (and therefore why she was dismissed) was because she thought that the wording of the relevant clause was too favourable to the employer to sufficiently protect her own interests. Disagreeing with the wording or interpretation of an agreement could not amount to a philosophical belief under the Equality Act.
Moreover, because it was not Ms Gray’s belief that caused her refusal to sign the copyright agreement and consequent dismissal, Mulberry’s PCP (see above) could not be construed as disadvantaging a group sharing Ms Gray’s belief. There was also no evidence that Mulberry’s other employees had suffered a disadvantage because they shared Ms Grey’s belief. Thus, the requirement for a group disadvantage in the Equality Act’s definition of indirect discrimination had not been met.
Ms Gray’s barrister argued that the legislative requirement for group disadvantage should be interpreted consistently with EU law and the ECHR (including Article 9). The Court considered relevant authorities and accepted that there may be cases where it is enough for a claimant to show only a hypothetical group disadvantage. However, this was not the case here.
In accordance with the European Court of Human Rights’ judgment in Eweida and others v United Kingdom [2013], the Court held that, in every case, the disadvantage must result from the claimant’s action being intimately linked to the religion or belief concerned. Here, the manifestation of Ms Gray’s belief (her refusal to sign the copyright agreement) did not have “a sufficiently close and direct nexus with the underlying belief itself” because “Ms Gray’s manifestation of her belief is so individual that she is the only person in a group holding the same belief who is put at a disadvantage”. So, Ms Gray could not “bring herself within the protection of Article 9”.
Finally, the Court held that Mulberry’s PCP was a proportionate means of achieving its legitimate aim to protect its intellectual property.
This case serves as an important reminder of the many hurdles faced by a claimant in seeking to establish a successful indirect discrimination claim based on their belief.
