In Bessong v Pennine Care NHS Foundation Trust, B, a mental health nurse was seriously assaulted by a patient accompanied by racist abuse, i.e. “You f*****g black I’m going to stab you now”. An ET upheld B’s indirect discrimination claim because the incident reporting system had fallen into disrepute and the Trust should have taken steps to reinforce the message that all incidents should be reported. The ET, however, rejected B’s harassment claim because the employer’s failings (their conduct) were not themselves related to race. In upholding the ET’s decision, the EAT rejected B’s argument that S.26 (1) of the Equality Act 2010 should be interpreted in line with the EU Race Directive to impose liability on an employer for third-party harassment without any requirement that the employer’s failings themselves had to be related to race. The EAT held that the Directive requires that an employer’s conduct/inaction be itself related to race in order to give rise to any liability. In any event the Court of Appeal in Unite the Union v Nailard had confirmed that there is currently no explicit liability under the EA 2010 on an employer for failing to prevent third-party harassment.

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