Race discrimination can include harassment by a customer

The definition of harassment as set out in the majority of the discrimination legislation, including the Race Relations Act 1976 (RRA), is “unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.”

In the case of Gravell v. Bexley Council (the Council) the EAT confirmed that under the RRA this definition includes unwanted conduct by a customer.

Gravell v. Bexley Council

Ms Gravell, a white British female, worked for the Council's housing department. She claimed that whilst she was on duty and in the company of a customer the customer twice used the word 'paki' which she found uncomfortable.

Ms Gravell claimed that it was the Council's policy not to challenge any customer who made racist remarks or tell them that such remarks were not acceptable. Ms Gravell complained internally to the Council but was not satisfied that they dealt with the matter appropriately. She resigned and raised tribunal proceedings claiming racial harassment under s3A of the RRA.

The claim was initially struck out as having "no reasonable prospect of success" but the EAT overturned the decision. The EAT decided that even though the Council strongly contested the allegation that it was their policy not to challenge racist comments or behaviour by customers, if this was the case, the policy could be capable itself of having the effect of creating an offensive environment for employees. The policy could render the Council liable for harassment under the RRA. Their failure to properly deal with the allegations also counted against them.

This case clearly emphasises the danger of ignoring or not taking appropriate action when an employee reports discriminatory acts by third parties, even where the employee concerned is not an ethnic minority themselves. It also highlights the importance of having an adequate bullying and harassment policy in place and of promoting an environment where employees are clear that bullying and harassment will not be tolerated.

The definition of harassment in the Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Age) Regulations 2006 is very similar to that in the RRA. Whilst there have not yet been any relevant decisions covering harassment by a third party in relation to sexual orientation and age, it is likely that a tribunal would apply similar reasoning to that applied in the above case.