Abuse on the premises

The `Bernard Manning' case means firms cannot turn a blind eye to harassment
Ask Freda Burton and Sonia Rhule what it is like to be racially harassed and they will tell you that it is a "horrible experience". They were both working as waitresses at a function organised by the Round Table in Derby when it happened; Sonia Rhule said that it was more like being at a National Front meeting.

But however blatant the abuse heaped on them by Bernard Manning and his audience, the two women could not be sure that a claim for racial harassment would succeed - mainly because, under the Race Relations Act, they have to bring a claim against their employer, who is liable only for his own wrongdoings, or those of his employees acting "in the course of their employment".

Nevertheless, backed by the Commission for Racial Equality, Freda Burton and Sonia Rhule brought a case to find out whether the Pennine Hotel could be found responsible.

The two women, employed for the evening as casual waitresses by the hotel, had gone into the banqueting hall to clear tables. Bernard Manning, the after-dinner speaker, was on stage. He was using offensive words such as "wog", "nigger" and "sambo" and making jokes about the sexual organs of black men. Things became much worse, however, when he spotted the two women. After he had directed a number of sexually and racially explicit comments at them, some of the guests started to harass them. "Nobody came to help us, and nobody stopped it," said Ms Rhule.

Yet the industrial tribunal found that Mr Manning and the guests of the Round Table were to blame, not the employer. For the claim to succeed, the two women would have to show that their employer was also racially biased against them.

But the Employment Appeal Tribunal has just ruled that this was where the original tribunal went wrong. There was no need, said the EAT, to show that the employer had any intention or even a motive to discriminate against them. All that the appellants had to show was that the employer treated the two women less favourably than other employees on racial grounds and that they were then "subjected to detriment".

The Commission for Racial Equality claims that "the decision sets an important new precedent for all employers, clarifying the responsibility they have to protect their employees from racial harassment and abuse". Chris Boothman, head of law and administration at the CRE, says there is now "a clear legal duty to protect staff in a work environment, even against third parties".

For its part, the hotel has complained that the ruling broadens the liability of employers far too much. David Edwards, a lawyer with the Greenalls group, reckoned that "it remains to be seen whether employers will be able to cope, or not." Despite his view that the decision places a burden on employers far beyond what the Act intended, the group has decided not to appeal against it.

However welcome the judgement is to discrimination practitioners, at least one commentator has criticised the EAT for ignoring a key provision of the Act, namely for not asking how two white waitresses would have been treated. Instead, the appeal tribunal focused all its efforts on whether the women had been "subjected" to a detriment, and came up with a new test. Employment lawyers are waiting to see whether another case which has been heard by the Court of Appeal - though judgment has been reserved - follows it.

Raymondo Jones, whose mother was white and whose father was black, worked for the Tower Boot Company as a machine operative for a month, during which his arm was burnt with a hot screwdriver, metal bolts were thrown at his head, his legs were whipped with a piece of welt, and he was referred to as "chimp," "monkey" and "baboon."

The tribunal ruling in his favour was overturned on appeal by the EAT, which said that the employer could not be held liable for what his employees did "in the course of their employment", if their misdemeanours were totally unconnected with the job which the employer had authorised them to do.

This decision has come under fire from Michael Rubenstein, a discrimination expert and editor of Industrial Relations Law Reports, because it produces a "glaring anomaly". That is, that the more flagrant the harassment, the less likely that the employer will be found liable.

But he hopes that, if the Court of Appeal accepts the test developed in the Manning case, this should prove helpful to Mr. Jones. "The statute says that the employer is liable for a discriminatory act in the course of employment. This test is helpful. It says that the court should be looking at whether the particular event was something sufficiently under the control of the employer, which could have been prevented by reasonable employment practices."

He is critical of the Act, mainly because of the need to show that the harasser was acting "in the course of his employment". A much better, he says, is used in Ireland: "liability is determined by whether the person who was harassed was acting in the course of their employment when it took place."

If nothing else then, these cases seem to indicate that all is not well with the Race Relations Act. To prove the point, recent statistics show that it is getting harder to prove a claim of racial discrimination, with the number of successful claims down from 151 in 1993 to 72 last year. All in all, just under 1,400 claims were lodged, of which almost 400 were unsuccessful.

No one can account for the sudden fall, although perhaps it is time someone found out. Otherwise, applicants such as Freda Burton, Sonia Rhule and Raymondo Jones will not get the compensation they deserve for the harassment they have suffered

The author is legal officer with the MSF union.