An employee who when leaving her company gave less notice than she had originally agreed seems to have soured the relationship between herself and her employer. Her employer told her that, "We will probably bump into each other in future, unless you are married off in India".
The employee was upset by that remark and complained to an employment tribunal where an Employment Judge upheld a claim for racial harassment contrary to s. 3A of the Race Relations Act 1976 despite his accepting that no threat had been intended. MR Justice Underhill of the Employment Appeal Tribunal upheld the tribunal award to the claimant of compensation of £1,000 for injury to feelings.
In his guidance judge Underhill said that the Protection from Harassment Act 1997 (s 11) is not relevant to employment tribunal cases, and that old caselaw on harassment used before parliamentary legislation was enacted is no longer valid law.
The terms of s. 3A of the 1976 Act headed "Harassment" states:
(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1 (1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –
(a) violating that other person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) 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 elements of liability under s. 3A were formulated by the judge as follows:
(1) Unwanted conduct: Did the respondent engage in this?
(2) The purpose or effect of that conduct: Did it have either:
(a) the purpose or
(b) the effect of either (i) violating the claimant's dignity or (ii) creating an adverse environment for her?
(3) The grounds for the conduct. Was that conduct on the grounds of the claimant's race (or ethnic or national origins)?
Judge Underhill made four other points regarding the application of s. 3A.
1)Old case law and provisions of the Protection from Harassment Act 1997 and its associated case law are not of use in employment tribunal cases. Specifically , "course of conduct" as defined in the 1997 Act does not apply.
2)As regards conduct, there are two alternative bases of liability – "purpose" and "effect", meaning that even in the absence of any bad intentions, conduct itself is enough to make a perpetrator liable for any results. And even if there were no adverse consequences for the victim, he could still be liable for his conduct.
Once it is established that the conduct has led to adverse consequences for the victim, the tribunal must then decide if it was reasonable for the victim to have reacted in perceiving her dignity to have been violated or an adverse environment to have been created (This is a so-called 'objective test'.
For the perpetrator to be liable, It is not enough that the victim was adversely affected, but that a normal person would have also have suffered in the same way). Deciding this is a matter for the factual assessment of the tribunal having regard to all the relevant circumstances including the context of the conduct in question.
4)After the above has been decided, that the response was reasonable, the grounds of the unwanted behaviour need to be investigated (see the speeches of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501, at pp. 510-513, ([1999] ICR 877, at pp. 884-6) and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at para. 29 (p. 1072)).
This will usually involve an examination of the mental processes of the perpetrator even though the "ground" of the action complained of is sometimes in and of itself racial(The best example relates to sex discrimination: James v Eastleigh Borough Council [1990] 2 AC 751 ([1990] ICR 554).
Where the criterion applied by the Council overtly discriminated between men and women there was no need to delve into the thought processes of the decision-makers as once put into action, the inherently discriminatory criterion gave the “reason why" the victim had suffered the discrimination complained of.
The discriminatory act complained of is however not normally so obvious as in James v Eastleigh Borough Council, so in the absence of overt and self-explanatory behaviour such as racial abuse, the reason or "grounds" for the behaviour will normally need to be sought.
The transcript of this case can be found
Here
© Workrep 14 / 02 / 2009