Employment Update March 2009: Harassment

23 March 2009

Employment Group

EAT applies Thomas Sanderson principles to racist comment

In Richmond Pharmacology v Dhaliwal the claimant had resigned and was working out her notice period. Relations between her and her line manager (one of the founders of the company) deteriorated. Her line manager then suggested that they should at least be civil to each other, adding the comment: 'We will probably bump into each other in future, unless you are married off in India'.

The claimant was of Indian ethnic origin.

She found the comment racially offensive and complained of harassment. The employment tribunal agreed and awarded her £1,000 compensation for injury to feelings.

The EAT has now upheld this award and made some important points about harassment as a variety of unlawful discrimination -

  • it does not have to be a 'course of conduct' like harassment under the Protection from Harassment Act 1997 - one comment (as in this case) can form the basis of a claim;

  • the tribunal can look either at the 'purpose' behind the act, or the 'effect' of it, in deciding whether harassment took place;

  • there does have to be an element of 'reasonableness'. If the claimant is unreasonably prone to taking offence, a harassment claim will not succeed; but

  • the EAT is happy to follow the Court of Appeal decision in English v Thomas Sanderson (where the harassment took the form of banter about the claimant’s sexual orientation) – the motivation of the harasser may be relevant, but not where the act complained of is overtly discriminatory.

Point to note –

  • There have now been two recent, and high-profile, cases on the extent to which unacceptable ‘office banter’ can result in legal claims against employers. All employers should ensure that they have policies in place to make clear to employees where the legal boundaries lie. Please ask any member of our employment team if further advice is required.