Comments on: Third Party Abuse

By: Richard

Richard — Wed, 28 Feb 2007 16:10:12 +0000

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.

By: Phil

Phil — Mon, 26 Feb 2007 19:02:38 +0000

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.

By: Richard

Richard — Mon, 26 Feb 2007 18:30:44 +0000

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.

By: Phil

Phil — Mon, 26 Feb 2007 17:59:32 +0000

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.

By: Richard

Richard — Mon, 26 Feb 2007 15:32:57 +0000

The ‘Manning’ case was criticised as wrongly decided and overruled by the House of Lords in MacDonald