Legislation expected to take effect in 2024 may cause particular difficulties in the education sector.
The Equality Act provides protection from discrimination to those with one of a number of protected characteristics. Claims for discrimination and harassment at work can be brought against both employers and the employees who it is alleged have carried out the acts, and employers can be vicariously liable for the actions of their employees. As the law stands however, employers are not liable for the acts of third parties.
The history of third-party liability for harassment is quite interesting when put into the context of educational establishments. Way back in 1994 two waitresses successfully brought claims of harassment by a third party when they were the target of racist and sexist jokes by the comedian hired to "entertain" at an all-male private dinner. However, in 2003 the House of Lords (now Supreme Court) reversed that judgment when it held that a school was not liable for the harassment suffered by a teacher at the hands of pupils. The court held that as the pupils were neither employees acting in the course of their employment nor acting as agents of the school, no liability for their actions arose under the Sex Discrimination Act 1975 (which was the relevant legislation in force at the time). That then left a gap in protection from harassment for employees.
That gap was temporarily filled when the Equality Act came into force as it included a provision which introduced employer liability for third party harassment. That liability was only triggered (1) after there had been two previous incidents of harassment (although not necessarily by the same third party), (2) the employer was aware of those incidents, and (3) the employer failed to take reasonable steps to prevent the harassment from occurring again. There was therefore some warning for the employer that they needed to act before any vicarious liability arose. That provision was subsequently repealed with effect from 1 October 2013.
What is changing?
The Worker Protection (Amendment of Equality Act 2010) Bill ("the Bill") is currently making its way through Parliament, and it is anticipated it will become law in early 2024. As currently drafted, the legislation will re-introduce employers' vicarious liability for third-party harassment. However, unlike the earlier provision, the new one will trigger vicarious liability when the first incident of harassment by a third party occurs unless the employer can show they have taken "all reasonable steps" to prevent the harassment from happening. It is anticipated that the Equality and Human Rights Commission will introduce a statutory Code of Practice that will set out the steps employers require to take to comply with this duty.
The recent case of Mallet-Ali v Perth & Kinross Council is a timely example of how much more difficult it is currently for school staff to successfully claim harassment. The claimant described herself as of Pakistani ethnicity but Scottish nationality. It was accepted that the treatment she had received at the hands of pupils - including pupils using racially based language and Indian accents when addressing her - was racially motivated harassment. However, in order to have a remedy based on current legislative provisions she had to show that the school had acted towards her in a discriminatory way in the manner they handled the situation. She was unable to do that and her tribunal claim was unsuccessful. Had she been able to rely on the provisions proposed under the Bill, she would have been able to rely on the actions of the pupils without needing to demonstrate the employer had subsequently acted in a discriminatory way.
It is worth remembering that the definition of harassment in the Equality Act is a wide one. It includes any unwanted conduct that violates someone's dignity or creates an intimidating, hostile, degrading or offensive environment. "Unwanted conduct" can include any kind of behaviour including those common amongst pupils such as physical gestures, facial expressions and pranks as well as verbal and physical abuse. Difficulties with the behaviours of some pupils and the abuse that some teachers endure (from parents as well as pupils) has been well reported in recent years. Harassment can also occur online - a survey carried out in 2022 suggests that 49% of teachers have experienced harassment in this way.
What should employers be doing?
Employers and, in particular, schools and educational establishments need to be starting to think about what they can put into place now to enable them to show they have taken reasonable steps to prevent third party harassment. When dealing with pupils, a good starting point would be to look at any behaviour policies and ensure they address all forms of harassment and abuse by pupils including online abuse. This should be done in consultation with staff and trade union representatives. Ways of seeking engagement with parents to support the communication and maintenance of appropriate behavioural standards should also be reviewed.
Education employers should ensure that these policies are then applied consistently, including using all available sanctions, which may even include permanent exclusion in some circumstances. A track record of having acted swiftly and appropriately in similar circumstances previously is likely to be beneficial. The school should be able to demonstrate that pupils have been made aware of expectations of conduct and that harassment of staff will not be tolerated.
Schools should also consider what they say to parents about their own behaviour in relation to their interactions with staff and whether enrolment agreements should be updated to include the school's expectations around this. Perhaps also consider a Code of Conduct for parents and visitors to the school (which could cover contractors, suppliers etc.) that is communicated to those third parties, placed on the school's website and displayed on the premises.
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