The Claimant in the Employment Tribunal was present when a colleague made a remark which included a reference to ISIS. She complained that this amounted to harassment by way of conduct related to race, identified by her for this purpose as her own race of being British Asian Indian. The Tribunal upheld the complaint and the First Respondent (the employer) appealed.
Held: The Tribunal erred because:
(1) It did not make a clear and distinct finding that the conduct related to race, as opposed to addressing the other elements of the definition of harassment;
(2) If it did consider that the conduct related to race, it appeared to have done so on the basis of its view that the ‘perception of ISIS in the minds of a significant proportion of the general public is that it is an international organisation connected with Asian people, in particular, those in such areas as Pakistan, Afghanistan and Iran’. But, if so:
(a) That was not a proper finding, because there was no evidence before the Tribunal to support it. It was not a matter of which it could take judicial notice;
(b) In any event the Tribunal had to decide for itself whether the conduct, and, in this case specifically the making of a reference to ISIS, related to race, as opposed to relying on what it took to be the public perception; and
(c) In any event it was unfair to the First Respondent to reply upon this proposition, because it had not been put forward, or canvassed, by either the Claimant or the Tribunal during the course of the hearing.
(3) The Appeal would therefore be allowed, and the decision upholding this complaint, and the associated award, quashed. On the evidence before the Tribunal, and the facts as found, the Tribunal, correctly applying the law, could not have properly concluded that this was conduct related to race, as alleged. The matter would therefore not be remitted.
Citations:
[2019] UKEAT 0039 – 19 – 2211
Links:
Jurisdiction:
England and Wales
Employment
Updated: 01 December 2022; Ref: scu.650906
