The Employment Appeal Tribunal (EAT) heard an appeal against a decision of the London South Employment Tribunal upholding a claim for racial harassment contrary to section 3A of the Race Relations Act 1976 (RRA) and awarding the claimant compensation in the amount of £1,000 for injury to feelings.
On 13 August 2007, the claimant, Dhaliwal, gave one month’s notice of resignation. The claimant’s relationship with her boss, L, became strained, to the point where he had a meeting with her to tell her that her work had deteriorated and that she should make sure she worked out her notice in a professional way.
In that context, he made the point that even after the claimant left the company, their paths would probably continue to cross. He said: “We will probably bump into each other in future, unless you are married off in India”. Dhaliwal, who is of Indian ethnic origin, was very upset by the remark and said that she would not proceed any further without someone from HR being present. She subsequently took out a grievance but it was not resolved to her satisfaction.
The references to marriage and to India had not come out of the blue. The tribunal accepted evidence that the claimant had on more than one occasion referred to the possibility of getting married and giving up work. She had also had a discussion about marriage with her boss. During that conversation she had said that her parents wanted to see her get married. Dhaliwal issued proceedings for harassment on racial grounds. The employer argued that the remark did not amount to unlawful racial harassment.
The necessary elements of liability under s.3A of the RRA are threefold: (1) A person engages in unwanted conduct, (2) which has the purpose or effect of either violating the claimant’s dignity or creating an adverse environment for her, and (3) the grounds for the conduct must be the claimant’s race, ethnicity or national origin. Taking each of the three elements in turn, the EAT found that the conduct had clearly been unwanted, as was evidenced by how the claimant reacted at the time to the remark.
In terms of the “purpose and effect” element, the EAT noted that the employer was liable on the basis that the effect of the conduct had been to produce the impact it did, even if that was not its purpose. With regards to the conduct being on racial grounds, the tribunal had been quite clear that L had not intended to cause Dhaliwal offence. However, he had upset her greatly. While the case was a “borderline” one, which explained the low damages, the EAT was satisfied that the behaviour was inherently on racial grounds.
The EAT concluded its judgment by saying that it was important that employers, and tribunals, be sensitive to the hurt that can be caused by racially offensive comments or conduct, but that it was also important not to encourage hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.
This judgment sets out the approach tribunals need to take in respect of analysing whether or not harassment has taken place. Harassment occurs if it has the “purpose or effect” of violating a person’s dignity or creating an intimidating atmosphere on a discriminatory ground. The judgment also demonstrates that all employers can be liable for acts of discrimination by their employees and need to ensure their policies are up to date and properly communicated to the workforce.
Lisa Mayhew, employment partner, Jones Day