Can clubs be liable for racial harassment suffered by players at the hands of supporters?

Football players suffering racist abuse at the hands of supporters or opposition players is still a depressingly regular occurrence.

A particularly unpleasant example is the alleged abuse suffered by talented Liverpool youngster Rhian Brewster, who has alleged that he has suffered racial abuse from opposition players while representing England at the U17 World Cup and whilst playing for his club in a UEFA Youth League tie.

Complaints can of course be made to sporting governing bodies, but under English law can a player who suffers this type of abuse take action against his or her own club? It used to be the case that an employee who suffered unlawful harassment at the hands of a third party could bring a discrimination claim against the employer if certain conditions were met. These provisions were known as the third party harassment provisions. However, in 2013 the third party harassment provisions were repealed leaving this area of the law in a confused state.

In Unite the Union v Nailard [2018] the Court of Appeal has confirmed that an employer will not generally be liable for harassment of an employee by a third party. There is an exception to this rule in that the employer will be liable if it has failed to deal with the harassment because it was also motivated by discrimination. As you can imagine, this would be a very difficult evidential hurdle for an employee to overcome.

There are obviously a range of arguments for and against employers being liable for acts of harassment carried out by third parties. However, in the world of professional football the current state of the law is regrettable in one sense at least. Namely, that clubs are less likely to be motivated to get to grips with the issue if they don’t face the risk of expensive and embarrassing discrimination claims from their own players.