The EAT has confirmed that it is not necessary for a person to share the protected characteristic before he can be harassed or discriminated against: Noble -v- Sidhil Ltd 2016.

This case concerned a number of allegations of discrimination and harassment, brought by an individual who worked in a paint workshop with just one other member of staff, his manager. The tribunal largely preferred the evidence of the manager and found that most of the comments had never been made, however it did accept that the manager had made a reference to Nelson Mandela being “evil”, and that he habitually used a racially offensive word. In both of these findings, the tribunal simply stated that as the Claimant was white British, the use of such words could not therefore be unlawful. This reasoning was applied to a handful of other alleged statements, the tribunal declining to decide whether they had occurred or not but stating that in any case they could not be discriminatory.

The EAT has allowed the Claimant’s appeal insofar as it is an error of law to state that if the Claimant does not share the protected characteristic at issue, his claim must inevitably fail. Further, although the tribunal was correct to take each allegation in turn, it had then failed to go on to look at the overall picture and come to a conclusion in that regard. In places, the tribunal’s reasoning was also insufficient. The case was remitted to be heard before a freshly constituted tribunal, but only in respect of those claims in respect of which there had been an error of law or satisfactory reasoning had not been given.