EAT HARASSMENT: Purpose
Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being ‘married off in India’ had the effect of violating her dignity and constituted harassment within the meaning of s. 3A of the Race Relations Act 1976.
Observations on the approach to be taken by Tribunals in considering claims of harassment under the 1976 Act and the equivalent provisions of cognate legislation.
Underhill P J considered the wording ‘having regard to . . the perception of that other person’ and the danger of confusion and of Tribunals applying a ‘subjective’ test by the back door: ‘We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, [his] dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a ‘subjective’ element; but overall the criterion is objective, because what the Tribunal is required to consider is whether, if the Claimant has experienced those feelings or perceptions, it was reasonable for [him] to do so. Thus if, for example, the Tribunal believes that the Claimant was unreasonably prone to take offence, then even if [he] did genuinely feel [his] dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a Claimant to have felt [his] dignity to have been violated is quintessentially a matter for the factual assessment of the Tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct, was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.’
Underhill P J
[2009] UKEAT 0458 – 08 – 1202, [2009] ICR 724, [2009] IRLR 336
Bailii
Race Relations Act 1976 3A
England and Wales
Cited by:
Cited – HM Land Registry v Grant EAT 15-Apr-2010
hmlr_grantEAT10
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
HARASSMENT – Conduct
PRACTICE AND PROCEDURE – Appellate Jurisdiction /Reasons /Burns-Barke
An Employment Tribunal accepted that 6 out of 12 . .
Applied – Thomas Sanderson Blinds Ltd v English EAT 21-Feb-2011
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
PRACTICE AND PROCEDURE – Review
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant’s own . .
Cited – Grant v HM Land Registry CA 1-Jul-2011
The appellant had succeeded in his claim for sex discrimination arising from his orientation, but the EAT had reversed the decision. He now appealed against the EAT decision. Although he had revealed his sexuality in one post, he had chosen to delay . .
Cited – Heafield v Times Newspaper Ltd EAT 17-Jan-2013
EAT Religion or Belief Discrimination – The Appellant, a sub-editor, who was a Roman Catholic, was offended by an editor referring to ‘the fucking Pope’ when chasing a delayed article and brought a claim for . .
Cited – Quality Solicitors Cmht v Tunstall EAT 28-Jul-2014
EAT Harassment – Conduct – Single instance race harassment claim – one overheard remark, ‘She is Polish and very nice’ or ‘She is Polish but very nice’. The Employment Tribunal erred in law in (1) failing to . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Leading Case
Updated: 09 November 2021; Ref: scu.304523