After Ryanair row: should employers be held liable when they fail to prevent harassment?

There have been calls for Ryanair to apologise over the incident where a man racially abused a fellow passenger on one of their flights.

The man who has been identified as 70-year old David Mesher, a former railway worker. Mesher comes from the Birmingham area and lives in sheltered housing.

On a flight from Barcelona to Stansted, Mesher abused fellow traveller Delsie Gayle, aged 77 by calling her an ‘ugly black bastard’, and then shouting obscenities at her. He shouted ‘you don’t talk to me in a foreign language, you stupid, ugly cow.’

Ryanair faces pressure to apologise to Mrs Gayle and to explain why it took staff so long to intervene in the altercation between the two passengers. The incident was caught on phone camera by a fellow passenger and has been watched over 7 million times on Facebook.

Mrs Gayle stated that she did not know whether she would ever fully recover from the incident as it left her in tears every time she watched it.

The Mayor of Barcelona Ada Colau made a comment saying that the video was unbearable, and that Barcelona would not ‘take this lying down’. As a city, Barcelona intended to take the matter seriously, initiate legal action and use the video as proof.

The Mayor said that the reason for taking further action was to force Ryanair to make changes to their procedures in such cases, and to show support for victims rather than aggressors.

A ‘Change’ petition has since been signed by over 220,000 people, calling for the airline to compensate Mrs Gayle and apologise to her.

Because the plane was on the tarmac at Barcelona when the incident occurred, it is being investigated by Spanish Police.

Questions have since been asked as to where an employer stands legally if an employee fails to intervene, and whether Ryanair should have done more right away to prevent the incident from escalating.

Until 2013 the Equality Act contained a section which made employers liable if they failed to take action to prevent employees from being harassed by third parties. The third party could be a customer who either harassed or abused a staff member. The point raised was whether the failure to act was itself based on discriminatory grounds.

The question remains as to the obligations of a company to its staff when customers harass them or other customers. There has been no statutory provision to protect customers of the business from being harassed.

In effect what this means is that a company could be held liable for failing to prevent or stop any acts of harassment against its employees or customers, if failing to do so can be seen as harassment under the Equality Act.

The failure of the company to intervene must amount to ‘unwanted conduct’ which is related to a protected characteristic and ‘holds the purpose of either violating the dignity of the victim, or creating an intimidating, hostile or degrading environment for the victim’.

Breaking this statement down:

Unwanted conduct: a failure to intervene can amount to unwanted conduct, while the failure to act only needs to relate to the protected characteristic. The failure to act needs not be motivated by discriminatory intentions.

In the clause which refers to the effect of violating the victim’s dignity it can be argued that a failure to even try to intervene could be seen as an intention to contribute to the harassment. It is easy to see how the definition of harassment can occur in situations where no action is taken, or as in the case of Ryanair, not enough steps were taken at an appropriate time. What steps finally were taken, were insufficient and late.

Based on this, the legal responsibility of the company to prevent or stop the action of harassment did not happen. What did happen was that the company did not administer any form of sanction against the wrongdoer, they left this for the victim or relevant authorities to perform.

Did Ryanair do enough?

Under the Equality Act a company is responsible for the actions of its employees while employed in the company. When incidents happen, as with Ryanair, people in authority must make decisions quickly and often in stressful situations, and perhaps with only partial knowledge of the event. The decisions may well have far reaching consequences for both employers and employees.

Employees may also feel that they themselves could come under scrutiny and become the subject of a harassment claim. Under the Equality Act they may be held personally liable for the way they acted while employed in the company.

The Equality Act make allowances for circumstances which are taken into account when determining whether unwanted conduct indeed amounts to harassment. This provision assists businesses and employees when decisions are made under stressful conditions. They also take into account when a failure to act is an issue of degree rather, than a complete inaction.

In principle then, businesses can be liable under the Equality Act for failing to take steps to stop or prevent a third party from harassing an employee.

The incident with Ryanair serves as a reminder of the limits of the law as a tool which reflects public opinion of rights and wrongs of any situation.

While a duty to intervene to stop or prevent harassment of one person by another may be valid, the same rule does not require a business to take it on themselves to punish or impose sanctions on the attacker. The company – in this case Ryanair – should not be held responsible for failing to do this.

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