Richmond Pharmacology v Dhaliwal: EAT 12 Feb 2009

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
Race Relations Act 1976 3A
England and Wales
Cited by:
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CitedGrant v HM Land Registry CA 1-Jul-2011
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CitedHeafield v Times Newspaper Ltd EAT 17-Jan-2013
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CitedQuality Solicitors Cmht v Tunstall EAT 28-Jul-2014
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Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.304523