Posted on: Jun 08,2021
Some workplace jibes qualify as harassment. They will cost you your job, and your employer lots of money! The Equality Act 2010 defines “harassment” as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Cases in the employment tribunal show that a wide range of “banter” and actions are harassment.
Basile v Royal College of General Practitioners and others is a useful example of the wide variety of actions that can amount to harassment. Here, a man discriminated against another man with sexual comments and gestures, not all of which were directed at the claimant.
The harasser may not even be on the same continent as the person who takes offence. In Chief Constable of the Kent Constabulary v Kufeji, the Employment Appeal Tribunal (EAT) agreed with the tribunal that a postcard depicting a group of bare-breasted black women, sent by a work colleague from South Africa to a black police officer in the UK, amounted to racial harassment.
3. Harassment by memo
There can be a long delay between the act of harassment and the receipt of that act of harassment by an employee. The EAT in Bivonas LLP and other v Bennett held that the employment tribunal was right to find that a gay barrister was discriminated against when he discovered a memorandum in an archive that made derogatory comments about his sexual orientation.
The tribunal in Nolan v CD Bramall Dealership Ltd t/a Evans Halshaw Motorhouse Worksophighlighted evidence of age bias against an older worker as including banter related to his age, including colleagues nicknaming him “Yoda”.
In Quigley v London Borough of Lewisham, the employment tribunal made the unusual finding that a disabled job applicant was subjected to harassment when he was accidentally sent an internal email that he felt was dismissive of his application. A manager had accidentally replied to the job applicant, rather than forwarding the email to the employer’s recruitment team. Harassment could also occur if an individual accidentally overhears a comment, even if the perpetrator does not know that the individual is listening (Morgan v Halls of Gloucester).
In Roberts v Cash Zone (Camberley) Ltd and another, an age discrimination case brought by a young worker, the employment tribunal held that a manager’s use of the words “teenager” and “kid” to describe the claimant amounted to harassment.
Although the balance of power in the workplace normally lies with the manager over the employee, it is not unheard of for a manager to claim to have been bullied by subordinates. Fairbank v Royal Mail Group Ltd  is an example of a common scenario for employers that operate in male-dominated environments: a challenge to the authority of a female manager by a group of male employees who are not used to being managed by a woman.
In Otomewo v Carphone Warehouse Ltd , two members of staff took their heterosexual manager’s mobile phone without his permission to post a comment on the status update on his Facebook page saying “I am gay and proud”. The case is a reminder to employers that an individual can be subjected to sexual orientation discrimination even if the harasser knows that the individual is not gay.
The EAT decision in Heafield v Times Newspaper Ltd highlights that the context of a remark can often be critical when assessing whether or not it constituted harassment. The EAT held that there was no religious harassment when a Catholic employee took offence at a colleague’s expletive about the Pope shouted across a busy newsroom. While this harassment claim failed, there is nothing to prevent a shouted comment not aimed at the claimant from constituting harassment.
In Ceresa v Spaghetti House Ltd , a sexual orientation harassment claim, the tribunal found that when the restaurant in which the claimant worked was busy, the manager would “somewhat forcefully” direct waiters, including making physical contact with their backsides. Although the manager had perhaps touched the claimant’s bottom, this was not on the basis of his sexual orientation.
Although ultimately unsuccessful, the employment tribunal claim in Griffin v Hyder Brothers Ltd is a good example of some of the problems that can occur when colleagues insist on communicating in their first language to the possible exclusion of other workers who do not speak this language.
In Whitehouse v Komfort Workspace plc , Mr Whitehouse was employed as a technician for Komfort Workspace and had an unblemished disciplinary record. In August 2010, there was some sort of falling-out took place at the factory between two Komfort employees, Mr Rockcliffe and Mr Hooper. During the investigation of the incident, Mr Hooper explained that there had been racist graffiti in the toilets. All of the employees, including Mr Whitehouse denied having written it.
The company instructed a qualified writing expert to take a look at the graffiti. Much of it had been destroyed or cleared away and so the evidence was in the form of Mr Hooper’s blurry (and mostly indistinct) mobile phone pictures. The employees provided samples of their handwriting to the expert confidentially, who compared them with the photographs.
The expert’s report concluded that there was “strong evidence” to suggest that the majority of the graffiti was authored by two employees; Mr Deeming and Mr Whitehouse. There were many similarities between the handwriting of the two, and in light of this evidence the company decided to suspend them. Mr Whitehouse was dismissed. The tribunal found that there was a lack of reasonable grounds to sustain its belief in Mr Whitehouse’s guilt and that even if it was wrong on that point, the company’s investigation was not reasonable. A reasonable employer would have taken into account his long service and previously unblemished disciplinary record. The tribunal stated that “writing rude words on a lavatory wall is both juvenile and reprehensible” but would not be grounds for dismissal by a reasonable employer.
In Bal v Secretary of State for Work and Pensions (Jobcentre Plus), the claimant argued that a colleague’s suggestion that a radio-controlled toy helicopter, which was being flown around the office as a joke, be landed on the “flat surface” of his turban was religious harassment.
In X v Y, the employment tribunal found that a gay employee was harassed at a workplace fancy-dress event that he could not opt out of and that lent itself to banter of a sexual nature that could easily offend.
In Brown v Young & Co’s Brewery plc , Mr. Brown who is black was employed as a supervisor in a pub managed by Mr. Gavriloae. On St. Patrick’s Day 2013 the staff were trying on some promotional hats. Comments such as “you look sexy” and “you look like Robin Hood” were being made. When Mr. Brown tried on one of the hats, Mr. Gavriloae said “you look like a pimp”.
Mr. Brown was hurt and offended by this remark but did not complain immediately. Three weeks later he was informed that a disciplinary investigation had begun against him in relation to allegations of theft. He raised a formal grievance with the Respondent’s operations manager, which was rejected. He then brought a Tribunal claim alleging race discrimination and racial harassment.
Mr. Brown argued that the word “pimp” had racial connotations, which was denied by Mr. Gavriloae who claimed that he used the word because of the style of the hat and the way Mr. Brown tipped it down when wearing it. The Respondent referred to the Oxford English Dictionary, which identified a pimp as “a man who controls prostitutes and arranges clients for them taking a percentage of their earnings in return”. The Employment Tribunal referred to the Wikepedia entry that included the etymology for the word “pimping” that said the definition paid homage to hip-hop and its connection to street culture, although it has now entered common mainstream commercial use. Furthermore, the Tribunal noted that more than 50% of the men that showed from a Google search of the word were black.
The Tribunal held that the word “pimp” was a racially stereotyping word and accepting that the use of the word was unwanted by the Claimant, whose perception was that his dignity had been violated, upheld the complaint of harassment. The Tribunal also concluded that they would have found the incident to have amounted to one of direct discrimination.
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