Third party harassment: new law on the cards for schools and colleges

Under our current laws, it can be difficult for teachers and support staff to bring successful claims against their employers for harassment they experience at work by pupils or parents. In Mallet-Ali v Perth and Kinross Council, a tribunal had to decide if a school's failure to prevent a teacher from being subjected to racist abuse by its students, was due to its own discrimination. 

This blog looks at the facts of this case and considers whether the outcome would have been different if the proposed law on third party harassment had been in force.   

Facts

Mrs Mallet-Ali worked as a teacher in a school run by the local authority. Her nationality was Scottish (and she spoke with a Scottish accent) and her ethnicity was Pakistani. 

Some of her students mimicked an Indian accent when talking in her class and also used a racist term. Over time, the number and frequency of these incidents increased. She complained after each incident and the school, in line with its ethos (which focused on restorative practice rather than discipline), dealt with the pupils by talking to them (and their parents) about their inappropriate behaviour and asking them to apologise to Mrs Mallet-Ali. 

Mrs Mallet-Ali didn't think that the school were doing enough to prevent the abuse or to protect her. She wanted the pupils in question to be excluded from her class and for the incidents to be treated as hate crimes and dealt with under criminal law. The school did report the later incidents to the policy as 'hate crimes' and sought guidance from them about how to deal with these sorts of racist incidents. But, it was unable to exclude pupils from her class, in part due to guidance issued by the Scottish government.

She became ill with stress and was signed off work. She raised a grievance and, when that wasn't upheld, she resigned claiming that her relationship with the school's leaders had broken down and that it was unsafe for her to return to work. 

She argued that the school had subjected her to direct discrimination in the way it had dealt with the situation.   

Tribunal decision

The tribunal rejected her claims. It accepted that the pupils' behaviour towards Mrs Mallet-Ali was racially motivated. But that wasn't enough to get home on a direct discrimination claim. She also had to show that her employer had treated her less favourably than it would treat others (whose circumstances were not 'materially different' from hers) because of that protected characteristic. She either had to point to a real comparator, or demonstrate that her employer would have treated a hypothetical one in a different way. 

Mrs Mallet-Ali couldn't identify an actual comparator and the tribunal decided that the school would have treated a hypothetical comparator (which it identified as a white teacher subjected to discriminatory language or behaviour by pupils) in exactly the same way.

Changes in the law

This case demonstrates how difficult it is for employees to bring successful claims against their employers for the discriminatory behaviour of third parties. That's set to change. The Worker Protection (Amendment of Equality Act 2010) Bill is currently making its way through parliament and, once enacted, will impose liability on employers for this type of harassment. 

Some of our readers may remember that employees used to be protected from third party harassment under the Equality Act until those provisions were repealed in October 2013. The new provisions will not mirror the old ones. Employees will be able to bring harassment claims relating to a single incident and employers will only be able to escape liability if they have taken all reasonable steps to prevent the harassment. [Previously, the law imposed a 'three strike rule' which meant that employers were only liable for third party harassment of its staff where it knew about two previous occasions on which it had occurred and it hadn't taken all reasonable steps to prevent it.]

If this Bill had been in force, Mrs Mallet-Ali would have been able to rely on the actions of the pupils without needing to demonstrate that her employer had dealt with her concerns in a discriminatory way. That doesn't necessarily mean she would have won: the tribunal would have to focus on whether the steps the school took to prevent pupil's from harassing her met the threshold for the 'reasonable steps' defence to kick in.  

The question of what amounts to ‘all reasonable steps’ will depend on the circumstances. More is expected of an employer that has had problems in the past with harassment. The Equality and Human Rights Commission’s Code of Practice on Employment suggests that reasonable steps are likely to include:

• implementing an equality policy
• ensuring that workers are aware of the policy
• providing equal opportunities training
• reviewing the policy as appropriate, and
• dealing effectively with employee complaints

Schools and colleges are likely to have to do more than this though to get home on a 'reasonable steps' defence where harassment has been committed by pupils or other third parties. 

Tips for school and college leaders

Although we don't expect the law to come into force until 2024, we recommend that you start to prepare now to identify the level of harassment and bullying your staff currently face and put in place a strategy to tackle it. 

1. Find out how much of a problem this is in your school or college. Ask your staff questions about their experience: are they are being, or have been, harassed or bullied by pupils, parents and other third parties they come into contact with at work? How often does this happen? Have they reported it and if not, why not?

2. Once you have this information, find out if particular members of staff being targeted? Do they have common characteristics (such as their race, sex or age)? You may need to focus your training on these issues.

3. Introduce a system so that staff can quickly and easily report and record incidents.

4. Decide how you will tackle this type of abuse and reflect this in your policy.

5. How will you support staff experiencing harassment/discrimination?

6. Decide how you are going to educate your pupils about discrimination, harassment and hate crimes and who is going to deliver it. Will the same approach be suitable for all age groups? You may need to bring in professionals to cover some aspects of it and you should consider putting in place a rolling programme of education which is reinforced via year group assemblies etc. Include cyber-bulling in your training.

7. Communicate your approach to parents/guardians and make it clear that you won't tolerate any bullying/harassment of your staff by them, or their children, and how you will deal with incidents.  

8. Deal with issues promptly, consistently and in line with your agreed approach.

9. Monitor complaints and address specific issues via training and education.

10. Evaluate your progress on a regular basis and adapt your training/education as appropriate.

Free webinar

We are hosting a free webinar to help schools and colleges tackle sexual abuse and harassment which takes place on Thursday 4 May at 9.30 - 11am. You'll hear from our legal experts, Helen Dyke and Rachael Smurthwaite and from specialist barristers from 3PB chambers. You can find out more about the session and reserve your place here. 

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