In the recent case of Richmond Pharmacology v Dhaliwal, the Employment Appeal Tribunal took the opportunity to provide guidance on the meaning of "harassment" in discrimination law. The decision also demonstrates the importance of educating staff on the dangers of ill-judged remarks and how easy it is to foul of the laws against harassment.
Miss Dhaliwal was a British national and had lived in England all her life; but she was of Indian ethnic origin. She was employed by Richmond Pharmacology and in August 2007 gave one month's notice of resignation which, given her senior position and responsibility as a Project Manager, caused real problems for the company.
Against that background a short meeting took place between the Claimant and her manager, at which the Claimant was told her work had deteriorated and that she should make sure that she worked out her notice in a professional way. During that conversation, the Claimant's line manager said:
"We will probably bump into each other in future, unless you are married off in India".
The manager's reference to marriage and India did not come out of the blue: the Claimant had previously mentioned to her manager the possibility of getting married and giving up work and had also mentioned a visit to India. The Claimant was very upset by that remark and took out a grievance, but it was not resolved to her satisfaction and she brought a race discrimination claim, alleging harassment.
"Harassment" is defined similarly throughout the various pieces of discrimination legislation: a person subjects another to harassment where, on grounds of [race or ethnic or national origins, age, sex, sexual orientation, religion or belief, disability], he engages in unwanted conduct which has the purpose or effect of –
- violating another person's dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
The various legislation also provides that such conduct shall be regarded as having the above effect only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.
The Employment Tribunal found that Ms Dhaliwal had been subject to harassment and Richmond Pharmacology appealed the decision.
In its Judgment, the EAT helpfully broke down the necessary elements of liability for harassment claims, as follows:
- The unwanted conduct. Did the respondent engage in unwanted conduct?
- The purpose or effect of that conduct. Did the conduct in question either:
- have the purpose or
- have the effect of either (i) violating the claimant's dignity or (ii) creating an adverse environment for him?
- The grounds for the conduct. Was that conduct on the grounds of the claimant's race or ethnic or national origins, age, sex, sexual orientation, religion or belief, disability?
In its first instance decision, the Employment Tribunal had found that the remark "We will probably bump into each other in future, unless you are married off in India" was an unwanted remark, particularly as it was unnecessary within the context of the meeting between the Claimant and her manager to discuss her resignation.
The Tribunal believed that it was not the Claimant's manager's purpose to make a remark that amounted to racial harassment and held it was an ill-judged remark, but not a deliberately racially offensive remark. However, it found that the remark had an offensive effect, given the Claimant's immediate reaction and her continued sense of grievance. The Tribunal went on to find that the reference to "India" and "married off" within the same sentence suggested a stereotypical view of women of that ethnic origin. It did not find that the Claimant's perception was over-sensitive. It was reasonable for her to make a connection between what was said and stereotypical views of Indian women and for her to find that offensive.
The EAT agreed with this decision. In its Judgment, the EAT stated it was important to note the formal breakdown of the unwanted conduct into two alternative bases of liability – whether the conduct had the "purpose" or "effect" of violating someone's dignity or creating an adverse environment for them. The EAT noted that meant that employers may be held liable on the basis that the effect of the conduct has been to produce adverse consequences even if that was not the purpose; and, conversely, that they may be liable if the purpose of the conduct was to produce adverse but did not in fact do so.
The EAT also held that employers should not be held liable merely because the conduct has had the effect of producing an adverse consequence: it should be reasonable that that consequence has occurred. Although the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created, the overall test is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. For example, the tribunal believes that a claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment.