Dhaliwal v Richmond Pharmacology – Employment Appeal Tribunal
Ms Dhaliwal worked for Richmond Pharmacology as a project manager and gave one month's notice of resignation in August 2007. During her notice period, Ms Dhaliwal's relationship with her manager became strained. He informed her that her work had deteriorated and that she should work out her notice period in a professional way. In this context, he commented that even after Ms Dhaliwal left the company their paths still may cross, saying (words to the effect of ) "we will probably bump into each other in future, unless you are married off in India".
Ms Dhaliwal, who is Indian, was upset by this remark and lodged a grievance against her employer. The grievance was not resolved to her satisfaction and she issued proceedings at the Employment Tribunal claiming harassment on racial grounds. Her former employer argued that the remark did not constitute unlawful racial harassment.
The EAT upheld the Tribunal's decision that the comment violated Ms Dhaliwal's dignity and constituted racial harassment. She was awarded £1,000 for injury to feelings.
The EAT advised that in cases such as this, Employment Tribunals should focus on each constituent element of the statutory definition of harassment, to determine:-
- Was there unwanted conduct?
- Was it on the grounds of race or ethnic or national origin?
- Was the purpose or effect of that conduct to violate the person's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment?
- If the person felt that their dignity had been violated, was it reasonable to feel this way?
Applying these principles, the EAT found that, whilst the remark made to Ms Dhaliwal was not intended to violate her dignity, it had the effect of doing so. It rejected the employer's argument that it could not reasonably be perceived as having that effect. The award of £1000 indicated however that this was a "borderline" harassment case.
What does it mean for you?
This case illustrates the approach that Tribunals will take when determining liability in harassment claims. Employers should note that the victim's perceptions are important in this analysis and that the motive of the perpetrator is not always relevant. The decision is also a useful reminder that an isolated or "one-off" act or remark can give rise to a successful discrimination claim. Employers should ensure that their policies address this risk and are widely communicated to all members of the workforce.