The UK’s Daily Telegraph reported last week on the appeal of an Employment Tribunal decision in a claim brought by a black chef who complained about her boss using the word ‘golliwog’ during a conversation about the old Robertson’s Jam label. Although in use by the brand since 1910, the golliwog image was removed from Robertson jam jars and advertising in 2002 after the image and term had become seen increasingly as an offensive and pejorative reference to black people (though the Brand Director at the time said that “We are retiring Golly because we found families with kids no longer necessarily knew about him. We are not bowing to political correctness, but like with any great brand we have to move with the times”. Indeed so).

The chef’s racial harassment claim was dismissed by an Employment Tribunal because it had been brought after the 3 month limitation period, though, according to the article, the Tribunal had nonetheless found that the boss’ use of the word ‘golliwog’ did amount to an “isolated act of harassment” despite the fact that he did not intend any offence and had apologised at the time for the use of the word. The chef’s lawyer had successfully argued that as the word is inherently offensive to black people, its use must amount to harassment, irrespective of context. But is this right?

Under the Equality Act 2010, conduct can amount to harassment if it is unwanted and has either the purpose or the effect of violating dignity or creating an offensive, intimidating or hostile environment. It must also relate to one of the protected characteristics, including race. Intention and context are, on the face of it therefore irrelevant if the recipient is offended. However, an important caveat to this test is where it is not reasonable for the conduct to have that effect, i.e. where the victim is perhaps hypersensitive. This caveat appears to open the door to arguments around context.

This point was put to the test earlier in the year in the case of Heafield v Times Newspapers (see this earlier blog-piece). In that case, a Times newspaper editor was accused of religious harassment after he shouted across the newsroom “Can someone tell me what’s happening to the f****ng Pope?”. He was referring to an article about the Pope which was overdue but this comment was overheard by a Roman Catholic sub-editor who claimed that, irrespective of context, “f***ing Pope” was offensive to him. In that case, the Employment Appeal Tribunal (EAT) sensibly dismissed the claim, finding that there was no harassment as there was clearly no intention to harass and in the pressured context in which the remark was made, it was unreasonable for the Claimant to be offended. In this decision the EAT demonstrated the potential importance of context, not only when assessing intent but also when assessing the overall effect of the conduct and the reasonableness of the reaction.

In the chef’s case (if the claim is allowed to proceed) you might see some merit in an argument by the employer that the same common sense principles should apply and the claim should fail on the basis that all the boss had done was make apologetic reference to a word used substantially without controversy for over 90 years as a proper noun to describe a child’s toy, without in any sense condoning it or seeking its return to jam labels in any form. However, a key difference between the cases is that in Heafield, it was the uttering of an accompanying profanity that made the comment offensive. The Tribunal recognised that the world is imperfect and people swear and the profanity was not directly related to the word Pope or to Catholics. In this claim, the facts are slightly different as it is widely recognised that ‘golliwog’ is or at least can be an offensive term and so the Respondent in this case would potentially find it more difficult to rely on context to alleviate the impact of the usage.

To take this a step further, imagine a situation whereby a white employee repeatedly utters the N-word in front of a black colleague, whilst clearly singing along to his favourite hip hop track. It is not clear in that situation how far context would come to the employee’s rescue, given the widely accepted offensive nature of that term. It is however hard to see sensible scope for an argument that there are words which are so offensive that they are actionable in the workplace absolutely irrespective of context, as the chef here contends. Use of the N-word during staff training on avoiding harassment, for example, could well be legitimate, as could reference to friend Golly in the context of a discussion about changing racial attitudes or the shelf-life of brand logos.