On Karadzic, Savile and a Sense of Timing

Doesn't the possibility that organisations like the BBC and the NHS covered up Savile's malfeasances, suggest this is not the moment for Government to make it easier for employers to shrug off responsibility for acts of harassment by or on their employees?

It is often the juxtapositioning of events with respect to others which makes them truly significant.

This thought occurred to me yesterday when England's under 21 footballers were being racially abused by a Serbian crowd on the same day as former Bosnian Serb leader Radovan Karadzic began his defence against charges of genocide in the Hague.

I had the surreal experience of witnessing a few hours of Karadzic's trial personally earlier this year when an unrelated meeting I was taking part in was held in the offices of the War Crimes Tribunal.

With some hesitation, I sat and absorbed the spectacle from the public viewing gallery, just a few feet away from the monster.

Like the terrible reminders of Nazi barbarity - the mounds of spectacles, human hair and artificial limbs of holocaust victims behind glass cases at Auschwitz concentration camp - the awful nadir of man's inhumanity represented in a single person, was all the more chilling for his sheer ordinariness behind a viewing screen.

The acts as such bear no comparison, but the mindless hate and bigotry which a national culture can tolerate (indeed, apparently relish) was poignantly expressed in the football crowd in Krusevac in Serbia, booing and 'monkey chanting' at English players.

Media reports describe the miserable spectacle of supporters simmering with pointless racism towards a player merely because of the colour of his skin.

Who is responsible for such disgusting malevolence in a European country - indeed, a candidate country of the European Union? The people themselves of course, but that cannot be the only answer.

On the day that Karadzic's transparent denials of the undeniable sullied the court room, there can be no conviction in pleas of 'Non est mea culpa' of the vicarious racism of a nation's football crowd.

The authorities - whoever they are - must take control.

And in the same way as this applies to nation states, companies, ultimately, must accept responsibility for the behaviour of their employees.

In this morning's Financial Times, Jim Pickard reports that the government has inserted a new amendment into the Enterprise and Regulatory Reform bill to protect companies from claims of "third party" harassment at work.

The FT article states, "The harassment amendment, which is likely to be welcomed by business groups, would mean that employers would not be held liable in cases where people suffered racially or sexually abusive remarks by third parties in the workplace.

"The original law - now being overturned - was inspired by the tribunal victory of two black waitresses, who were racially insulted by the late Bernard Manning while serving drinks during a performance by the comedian."

In fact the Bernard Manning case simply applied the well known legal doctrine of 'vicarious liability,' to an employer in a situation where two waitresses were being abused and the employer had done nothing to prevent the abuse from happening. At the end of the day, the company was rightly held responsible.

The judgment did not create new law; it simply applied long standing principles that can be relied on in a wide range of non employment situations.

The law was however clarified under the 2010 Equality Act. This confirmed that the vicarious liability concept did indeed apply to discrimination in the employment context.

It wasn't particularly new and the courts had got their on their own anyway, though it was doubtless helpful to straighten things out. This apparently, is the law the government now wants to repeal.

In fact, the FT report states, only one case of third party harassment has come to court since the law was changed two years ago. It is hardly a case of 'overburdening business...' as Jo Swinson the Lib Dem Equalities Minister has implied.

So why should the Government should want to go to this trouble?

It seems unlikely that the courts will simply give up. If there were another Bernard Manning case the day after the statutory provisions have been repealed, would this prevent another claim? I think not.

The legislation would need to be framed in fairly draconian terms to prevent the doctrine of vicarious liability being relied upon in future discrimination claims.Is this really what they plan?

Moreover, at a time when the nation is learning daily of the harm which predatory sexual offender Jimmy Savile did to his young victims, is there not a timing issue here too which makes the whole thing particularly sickening?

Doesn't the possibility that organisations like the BBC and the NHS covered up Savile's malfeasances, suggest this is not the moment for Government to make it easier for employers to shrug off responsibility for acts of harassment by or on their employees?

Chris Ball is Chief Executive of TAEN - The Age and Employment Network

www.taen.org.uk

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