In September 1996 two Employment Appeal Tribunal judgements established important precedents that employers were liable for third party harassment by customers or clients where they might have acted to prevent it. These were the appeal decisions in Burton v De Vere Hotels and Go Kidz Co Ltd v Bourdouane.

In a case that attracted significant press coverage, Black waitresses Freda Burton and Sonia Rhule brought a claim under the Race Relations Act 1976 against De Vere Hotels (the employer). They said they had been subject to racial abuse and harassment by comedian Bernard Manning (and guests) at an all-male dinner (at which Manning was the speaker) at the Pennine Hotel, Derby, on 1 November 1994.

The day after the event, they had submitted a complaint to their employer:


We feel that the Pennine Hotel made a gross error in allowing the whole incident to take place. Lack of supervision of the managing staff contributed to this greatly; had they vetted Mr Manning and his material they would not have placed three Afro-Caribbean waitresses in such a prejudiced atmosphere.

Racism is an issue which we feel very strongly about; to be degraded (a) because we are women, (b) because we are black, is unforgivable’. (Burton v De Vere Hotels [1996] IRLR 596)


Although they lost the original industrial tribunal (in 1995) – on the grounds that, whilst they had suffered ’a horrible experience’, their employers were not liable – they went on to win their appeal case in September 1996 with the support of the Commission for Racial Equality.

The comments made by Manning and dinner guests were highly sexualised as well as racist, and the case demonstrates how forms of harassment intersect. The EAT judgment stated that, although the case had been brought under the Race Relations Act 1976 as a complaint of racial discrimination with no formal complaint ‘of sexual abuse or sexual harassment’, it was clear that they could also have done the latter on grounds that ‘were at least as strong’.  The ruling constituted a precedent for harassment cases (including those brought under the Sex Discrimination Act 1975) in relation to the general principle of an employer ‘subjecting’ an employee to circumstances that they might otherwise have been able to control.

Also in September 1996 an Employment Appeal Tribunal upheld an earlier industrial tribunal decision of July 1995 relating to a young woman employed as a hostess by a company that ran children’s birthday parties (Go Kidz Co Ltd v Bourdouane). She has been subjected to sexual remarks by a male parent, and this had deteriorated into an actual assault. It was agreed that ‘an employer has an obligation to take all reasonable steps to prevent sexual harassment taking place or continuing when it has power to prevent it or stop it.’ (Guardian, 14 Dec 1996, pD16)

Yet the law on employers’ liability for third party harassment remained far from stable and there have been very significant reversals. The first reversal occurred in 2003 when the House of Lords determined that both Burton v De Vere Hotels and Go Kidz Co Ltd v Bourdouane had been wrongly decided and thus overruled them.  (For the full judgment see MacDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School, [2003] UKHL 34).

In 2008 employers’ liability for third party harassment was incorporated into statutory legislation for the first time, and it was also included in the Equality Act 2010  (section 40(2)-(4)). Yet these sections were not in place for long – since they were specifically repealed three years later by the Enterprise and Regulatory Reform Act 2012 which sought to reduce ‘legislative burdens’ on employers.