Employment Tribunals should ignore previous harassment rulings, says EAT

Harassment laws used to be derived from discrimination legislation, a situation which Employment Appeals Tribunal (EAT) President Mr Justice Underhill said was not ideal. That meant that rulings from the era of the older law were not helpful, he said.

"The old law was constructed, somewhat uncomfortably, out of the general statutory definitions of discrimination," he said in a case involving a clinical trials company, Richmond Pharmacology. "The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps."

The case concerned a woman who was leaving Richmond Pharmacology and the company founder Dr Ulrike Lorch. Lorch said to the employee, a Miss Dhaliwal, "we will probably bump into each other in future, unless you are married off in India".

Dhaliwal argued that this was racial harassment under the Race Relations Act. The Employment Tribunal agreed and awarded her damages of £1,000, but Richmond appealed.

The EAT upheld the ruling, though it said that the case was on the border between racial harassment and the less serious hurt that can be caused by racially-insensitive comments, but which is not against the law. It said, though, that the case's borderline nature was reflected in the low compensation that was awarded. 

The EAT said that previous rulings on harassment should be disregarded.

The Race Relations Act now contains parts, at section 3A, which were inserted in 2003 to make it comply with an EU directive. "Such case-law as there was in relation to 'harassment' as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful," said the EAT ruling. "Still less is assistance is likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated case law."

Mr Justice Underhill outlined the steps that Tribunals should go through when considering racial harassment cases.

The law now says that harassment occurs if it has the "purpose or effect" of violating a person's dignity or creating an intimidating atmosphere.

"That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so," said the ruling.

Harassment occurs, then, if the perpetrator means it to, or if the offended person feels that it has occurred. Mr Justice Underhill pointed out, though, that any feeling of being harassed must be considered objectively to be reasonable, based on the offending behaviour.

"A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred," he wrote.

"If, for example, the tribunal believes that the 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 within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question," he said.

Mr Justice Underhill said that a further requirement, that the conduct be shown to be on the grounds of race, will be familiar to Tribunals, and that they can use previous cases related to other laws to guide them.

"There is ample case-law on the nature of the inquiry required by the (interchangeable) statutory phrases 'on the grounds of' or 'by reason that'," he said.

The EAT said that in its assessment the original Tribunal had not misinterpreted the law, and that the award of damages stands.