An Employment Tribunal has found that a comment made by a casual sub-editor of The Times was not harassment on grounds of religion. There had been no intention to cause offence and it was not reasonable for the comment to have had the effect of creating a hostile environment.
This case was decided under the Employment Equality (Religion or Belief) Regulations 2003, which was in force before the Equality Act 2010 was introduced. Under those Regulations, harassment was defined as unwanted conduct, on grounds of religion or belief and which had the purpose or effect of either violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Conduct under the 'purpose' limb of this test had to be intentional and was not subject to any reasonableness test. Conduct under the 'effect' limb would only amount to harassment if it would reasonably be considered as having that effect taking into account all the circumstances, including the perception of the alleged victim. As such, if any offense caused was unintentional, there would be no finding of harassment if the victim was being over-sensitive.
The corresponding provisions under the Equality Act 2010 are very similar to those that were in force under the Employment Equality (Religion or Belief) Regulations 2003. This case is therefore likely to be relevant to harassment claims brought under the Equality Act 2010.
Mr Heafield worked for The Times as a casual sub-editor, working shifts.
In 2010, The Times was running a series of articles regarding allegations of child abuse, and cover-ups, in the Catholic Church. Mr Heafield felt that the newspaper was portraying anti-Catholic feeling by running these articles. He was a practising Catholic, although his colleagues did not know this.
Before being given a specific headline, all news stories would be allocated a one word working title so that a mock-up of the newspaper could be made which set out where each article would be positioned.
One of the stories which The Times was working on concerned an allegation that the Pope had, in a previous role, protected a paedophile priest. This story was allocated the title 'The Pope' for the purposes of the mock-up.
As the deadline approached for the newspaper to be printed, one of Mr Heafield's colleagues realised that he had not seen the story. He shouted across the room 'Can anybody tell me what's happening to the f****** pope?' He received no response so repeated the question and raised his voice.
Mr Heafield did not complain about the comment at the time. However, a few days afterwards, he sent an email complaint stating that, as a Catholic, he found it to be very offensive.
The complaint was not investigated and Mr Heafield did not pursue the matter.
Mr Heafield brought a claim for harassment and victimisation. (His victimisation claim was based on the fact that he claimed that there had been a reduction in his shifts and that this was because he had raised a complaint. This report deals only with the harassment claim).
Mr Heafield alleged that the comment had intended to insult his religion. Alternatively, even if that was not intended, the comment was very clearly anti-Catholic and therefore it was reasonable for him, as a practising Catholic, to have been insulted.
Mr Heafield was unsuccessful in his claims.
The Tribunal found that:
- the comment had not been intended to cause offence. The comment was not personal, and the subject of the comment was the news story, not the Pope himself;
- it was not reasonable for the comment to have had the effect of creating a hostile, intimidating, degrading, humiliating or offensive environment for Mr Heafield. The comment was just a 'trivial and transitory' comment;
- there was no evidence to suggest that the comment had been made on religious grounds;
- there was no evidence that the individual who made the comment was using it as a precursor to create a hostile environment.
This is a useful reminder of the importance, in considering harassment claims, of the context in which the alleged offensive words are spoken. Whilst, here, the isolated comment may have been disrespectful, the Tribunal found that there was no general atmosphere of anti-Catholic sentiment. The Tribunal also found that the connection with the Pope as the Head of the Catholic Church was effectively incidental and that the person who made the comment was referring to the article. As such, the comment was not made on grounds of religion