Pearce v Mayfield Secondary School Governing Body

29. This is not a satisfactory decision. Lindsay J, sitting as the President of the Employment Appeal Tribunal, has said the decision may be 'vulnerable': see Hussain v HM Prison Service (8 May 2002, unreported). Viewed in the broadest terms, the Burton decision has much to commend it. There is, surely, everything to be said in favour of a conclusion which requires employers to take reasonable steps to protect employees from racial or sexual abuse by third parties. But is a failure to do so 'discrimination' by the employer? Where the Burton decision is, indeed, vulnerable is that it treats an employer's inadvertent failure to take such steps as discrimination even though the failure had nothing to do with the sex or race of the employees. In this crucially important respect the decision gives insufficient heed to the statutory discrimination provisions. An essential element of 'direct' sex discrimination by an employer is that, on the grounds of sex, the employer treats the employee less favourably than he treats or would treat an employee of the opposite sex. Similarly with 'direct' racial discrimination: the 'less favourable treatment' comparison is an essential ingredient of the statutory wrong: see section 1(1)(a) of the Race Relations Act 1976. Unless the employer's conduct satisfies this 'less favourable treatment' test, the employer is not guilty of direct sex or racial discrimination. In making this comparison acts of persons for whose conduct an employer is vicariously responsible are to be attributed to the employer. It is otherwise in respect of acts of third parties for whose conduct the employer is not vicariously liable.

30. With this in mind, the reasoning in the Burton decision is unsatisfactory in two important respects. First, the tribunal proceeded on the basis that harassment which is race specific in form is itself less favourable treatment on racial grounds. In the case of racial harassment of a black person there is no need to show that a white person would have been treated differently. Counsel's concession on this point was based on an apparently widespread misinterpretation of the decision in Strathclyde Regional Council v Porcelli [1986] SC 137; [1986] ICR 564. This is a point I have already discussed.

31. Secondly, the harassment in Burton was committed by third parties for whose conduct the employer was not vicariously responsible. Despite this, the tribunal seems to have proceeded on the basis that the racial harassment of the waitresses by the speaker and some of the guests constituted discrimination on the part of the employer, and that the only issue left outstanding on the appeal, if the discrimination claim were to succeed, was whether the employers had by active or passive conduct subjected the waitresses to racial harassment by the speaker and the offending guests. This cannot be right. In order to succeed the two Caribbean waitresses had to prove discrimination by their employer.