Third Party Abuse
by Philip
The EAT in Scotland has held that an employee who was verbally abused by the father of her employers (two brothers) during works time did not have grounds for constructive dismissal as the father was not her employer. Read it here.Whilst this decision may fit neatly into the law of unfair dismissal, I am not so sure that the result would have been the same if the abuse was of a sexual or racial nature. In a whole series of cases, starting with the infamous Bernard Manning case involving waitresses at a hotel in Derby, employers have been found liable for discrimination by third parties. In the Manning case the “comedian” made alleged sexist and racist comments which the waitresses serving at the event found offensive. The finding was one of discrimination even though Manning was not employed by the hotel.
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The ‘Manning’ case was criticised as wrongly decided and overruled by the House of Lords in MacDonald
Richard said at February 26th, 2007 at 3:32 pm
Burton was criticised in Obiter Dicta comments in McDonald but not strictly overruled. Their Lordships ruled that a failure to take steps to prevent discrimination could amount to discrimination if sex based. Thanks for the comment. I agree with your general point that the force of Burton and De Vere has been diluted by McDonald.
Phil said at February 26th, 2007 at 5:59 pm
From the judgment of Lord Rodger
‘I agree with Lord Nicholls of Birkenhead that, for the reasons which he gives, Burton v De Vere Hotels was wrongly decided’, so I cannot agree with your general point that sexual abuse by an outsider, in a situation similar to that above, would render the employer liable.
Richard said at February 26th, 2007 at 6:30 pm
Take your point-which is the vicarious liability one that an employer is liable for acts of an employee. The point is whether the employer who fails to protect an employee from abuse of a sexual nature from a third party commits an act of discrimination by that failure (or fails to take steps to prevent it happening) commits an act of discrimination. That point survives MacDonald if the failure is sex based.
Phil said at February 26th, 2007 at 7:02 pm
This is an interesting point. I wonder if there might be a harassment claim? For example, a teacher suffers homophobic abuse shouted through school railings by outsiders, during lunch break. Employer takes no reasonable steps to prevent the abuse.
Richard said at February 28th, 2007 at 4:10 pm