18 March 2013

Not all rude comments amount to harassment!

Most business owners and employees are aware that rude comments and remarks relating to race, religion or other protected characteristics, may amount to harassment. But can a rude comment relating to a protected characteristic with no intention to violate anyone's dignity still amount to harassment?

This matter was recently dealt with by the Employment Appeal Tribunal (EAT) in Heafield v Time Newspaper.

Background

The Claimant, Mr Heafield, a Catholic, was working as a sub-editor of the Times during the 2010 visit of the Pope; he heard Mr Wilson, one of the editors shout across the room "what's happening with the f****** Pope".  Mr Wilson did not know Mr Heafield was a Catholic; he was merely chasing a delayed story relating to the Pope.

Mr Heafield was upset and offended by Mr Wilson's comments and raised a complaint to his employer. He believed his complaint was not properly progressed and he subsequently brought a claim in the employment tribunal for harassment and victimisation on the basis that the comment had 'violated his dignity'.

The decision

Mr Heafield did not succeed in his claims because although the remark was rude and related to his religious belief and therefore was 'unwanted conduct', it was simply not serious enough to violate his dignity.

The EAT in rejecting the appeal pointed out:

"What Mr Wilson said was not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of these things. No doubt in a perfect world he would he should not have used expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes bad language thoughtlessly: a reasonable person would have understood that and made allowance for it."

Conclusion

The outcome of this case reinforces the concept that not all comments relating to a protected characteristic will amount to 'harassment' within the meaning of The Equality Act 2010; this is reserved for unwanted conduct:  

• 1. which has the purpose or effect of violating the complainant's dignity or creating an adverse environments and
• 2. which the complainant can reasonably perceive as having the effect described in (1).

This approach ensures that a culture of hypersensitivity is not created.