Veitch Penny LLP - Exeter | Crediton, Devon

Case

Conteh v Parking Partners Limited
Employment Appeal Tribunal Hearing 17 December 2010

Issues

The Issues

(1) Race discrimination
(2) Harassment
(3) Acts of third parties

Facts

Ms Conteh was employed as a Car Parking Assistant by the employer, a company providing car parking facilities. She worked in a car park below a residential development owned by St. George’s. She was subjected to abuse (including racial) by an employee of St George’s, following an incident when she followed an explicit instruction not to let anyone leave the car park without a validated ticket.

She brought an internal complaint with her employer and her manager spoke to the people concerned, although not to any senior managers of St. George’s. The managers sought a compromise with Ms Conteh but she was not satisfied with their proposal. She argued that the inaction of the employer and their failure to properly investigate and escalate the matter to senior managers in the development company constituted direct discrimination and harassment under the Race Relations Act 1976.

She brought a claim of racial discrimination against her employer at the Employment Tribunal. Her initial Tribunal complaint was rejected as it found the actions of her manager were not motivated by race and the matter was appealed to the Employment Appeal Tribunal (EAT).

Decision

The EAT upheld the Tribunal’s decision. In respect of the claim of direct discrimination, the Tribunal found on the facts that the employer’s actions were not motivated by race. In relation to the second claim of harassment, an employer, by their inaction, could contribute to the creation of the humiliating or offensive environment required by the legislation so liability was possible. However, the managers’ action or inaction had not, in fact, contributed to the hostile environment in this case. In any event, both claims required that the unwanted conduct be on racial grounds and, in each case, there was no element to allow the claim to succeed. The contention by Ms Conteh that a failure to deal with the complaint was inherently racist was rejected.

Comments

This case demonstrates that, under the pre-Equality Act legislation, while it was possible for an employer to be liable for contributing to or aggravating the harassment of another, there was no obligation to protect an employee from it. However, the Equality Act 2010 contains protections at Section 40 providing employees with more positive protection. The Equality Act says that an employer is liable if an employee is harassed by a third party in the course of their employment, if an employer is aware of the harassment taking place in two other occasions and fails to take steps to prevent it.