Mr Colleridge Bessong v Pennine Care NHS Foundation Trust
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Choudhury |
| Neutral Citation | UKEAT/0247/18/JOJ |
| Court | Employment Appeal Tribunal |
| Subject Matter | Race Discrimination,Not landmark |
| Date | 18 October 2019 |
| Published date | 22 October 2019 |
Copyright 2019
Appeal No. UKEAT/0247/18/JOJ
EMPLOYMENT APPEAL TRIBUNAL
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON EC4A 1NL
At the Tribunal
On 29 July 2019
Judgment handed down on 18 October 2019
Before
THE HONOURABLE MR JUSTICE CHOUDHURY (PRESIDENT)
(SITTING ALONE)
MR COLLERIDGE BESSONG APPELLANT
PENNINE CARE NHS FOUNDATION TRUST RESPONDENT
JUDGMENT
(Appeal & Cross-Appeal)
Copyright 2019
APPEARANCES
For the Appellant
Ms Karon Monaghan
(One of Her Majesty’s Counsel)
Mr Nathaniel Caiden
(of Counsel)
Instructed by:
Legal Services
Royal College of Nursing
Chesham House
St Georges Square
Bolton BL1 2HB
For the Respondent
Ms Joanne Connolly
(of Counsel)
(Written submissions only)
Instructed by:
Hempsons Solicitors
16th Floor City Tower
Piccadilly Plaza
Manchester M1 4BT
Copyright 2019
SUMMARY
RACE DISCRIMINATION – Harassment, Third-Party Harassment
The issue in this appeal is whether s.26 (1) of the Equality Act 2010 (“the 2010 Act”) should
be interpreted so as to impose liability on an employer for third-party harassment against
employees. The Claimant worked as a mental health nurse and was assaulted by a patient on
racial grounds. Whilst the Tribunal found that as a result of various failures on the part of the
employer, including a failure to ensure that all incidents of racial abuse were reported, the
Claimant had been indirectly discriminated against, it rejected the Claimant’s claim of
harassment because the employer’s failings were not themselves related to race. On appeal, the
Claimant argued that s.26(1) of the 2010 Act should be construed in accordance with Directive
2000/43/EC (“the Race Directive”) under which it is sufficient for liability to arise where the
act of harassment “takes place” without any requirement that the employer's failings themselves
had to be related to race.
Held: Dismissing the appeal, that on a proper construction of the Race Directive there is a
requirement for the unwanted act (in this case, the employer’s failings) to be related to race and
the words “takes place” in Article 2(3) of the Race Directive do not give rise to the
interpretation for which the Claimant contends. The EAT is in any event bound by the decision
of the Court of Appeal in Unite the Union v Nailard [2019] ICR 28, which confirms that there
is currently no explicit liability under the 2010 Act on an employer for failing to prevent third-
party harassment.
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