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Mentioning someone’s race is not always unlawful harassment

The Employment Appeal Tribunal has overturned a finding that a one-off comment referring to an employee’s national origin was unlawful harassment.

In a robust Judgment, the Employment Appeal Tribunal has overturned a finding that a one-off comment referring to an employee’s national origin was unlawful harassment (in the circumstances of that case).  Whilst a one off comment can be unlawful harassment, this will only be the case if it is reasonable for the remark to violate the person’s dignity, or create a humiliating or offensive environment for them. In an explanation which will be welcome by many employers, the Judge in Quality Solicitors CMHT v Tunstall has emphasised that the law is written so as to prevent trivial acts which cause minor upset being caught by the concept of harassment.

The facts

Mrs Tunstall brought a number of discrimination claims against her ex-employer, after her probationary period was brought to an end.  Only one claim succeeded at Tribunal, which arose from a single comment she had overheard being made about her to a client.  There was some dispute about what was said, either “She is Polish but very nice” or “She is Polish and very nice”.  Whichever was said, the Tribunal decided that the comment was unlawful harassment as it was unnecessary to mention Mrs Tunstall’s race to a third party (it was irrelevant) and it was used to patronise her.  The EAT has overturned this finding, holding that this single remark made in the course of a conversation encouraging the client to use her services was not capable of satisfying the legal definition of harassment.

What does this mean for me?

A one-off comment or remark can be unlawful harassment. If it is alleged that racist, sexist or homophobic insults are used in your organisation, such allegations must be treated with the utmost seriousness and you may be liable for harassment if they were made by one of your employees.  However sometimes alleged harassment is less obvious or clear-cut.  Referring to an employee by reference to their nationality (or national or ethnic origin), may be inadvisable, but it is not necessarily unlawful harassment. 

Whilst a more sensitive employee can contend that comments related to a protected characteristic can have the effect of undermining their dignity or creating a humiliating or offensive environment (whatever the speaker’s intention), the legal requirement that it must be reasonable for the conduct to have that effect does provide an appropriate limit to when unlawful harassment will be found.  In this Judgment the EAT has emphasised the cases which say that the law should not encourage a culture of hypersensitivity or the imposition of legal liability for every unfortunate phrase.  When you are faced with such internal allegations or when you need to consider a finding of misconduct or the appropriate sanction, you can take this into account.  A reference to someone’s race in the workplace certainly should not always result in dismissal.                      

Comment

This case illustrates the thin line which can divide what is unlawful discrimination and what is not.  Employers are able to defend discrimination claims arising from alleged harassment where you have taken all reasonable steps to prevent your employees from doing so (known as the employer’s defence).  This is where providing your managers and your workforce with equality and diversity training can be invaluable and can avoid liability where inappropriate comments are made.  It is also important to enable managers to identify what is unlawful harassment when it occurs, which can sometimes be a complex issue.  We are happy to help and can provide such training for your staff or managers.