Protected Characteristic

Thank crunchy its Friday! Not only is the weekend a few hours away but it also means you get another dose of case law to see you through to the end of the week. Today’s case concerns harassment and, like an episode of Celebrity Big Brother, comes with a warning for unpleasant language that some readers may find offensive.

Today’s question:

Can an employee claim harassment if they do not share the same protected characteristics that the harassing conduct is aimed at?

The Claimant, Mr Noble, worked for Sidhil Ltd, the Respondent. The Claimant worked in the paint workshop with his line manager, often they were the only two in the workshop. The Claimant was subject to many adverse appraisals by his manager which stated he lacked confidence, the Claimant blamed this on his manager calling him up on the smallest issues.

The Claimant went off work due to sickness then lodged a grievance with the Respondent citing harassment by his manager as the reason for his illness. The Respondent carried out an investigation into the grievance but dismissed it after no evidence of harassment was found, largely due to the Claimant’s manager being the only witness to the events. The Claimant appealed but this was also dismissed.

 

The Claimant then made claims against his line manager and the Respondent under the Equality Act 2010 for harassment on the grounds of age, race, sexual orientation and religion or belief. Despite not directly harassing the Claimant, the Respondent is vicariously liable as the employer. The next part of narrative is perhaps not as succinct as it could be but it is necessarily long to paint an accurate reflection of the manager’s conduct.

The claims related to race centred around the conduct of the manager who reportedly made many disparaging comments about Asian shopkeepers, used the word Yid in a derogatory manner, referred to a black security guard as Sooty, claimed Nelson Mandela was evil, claimed Jews monopolised Holocaust sympathy, frequently chanted the phrase “Agadoo do do do kill a P*** gas a J**” and finally regularly used the N word.

The claims related to age centred on the Claimant being 15 years older than his manager and was thus frequently told that he was having a midlife crisis, in the male menopause, having a hot flush or being a boring old man.

Further claims concerning sexual orientation included referring to the Claimant as gay Trev or queer Trev, writing gay Trev on dusty windows, saying gay people are immoral, insinuating to other colleagues that the Claimant was gay, calling the Claimant’s gay stepson “the gay one” and lastly referring to the Claimant’s hobby, karate, as “gay men, in gay clothes having a midlife crisis“.

Finally the claims in relation to religious beliefs included the manager saying the Claimant’s Christian beliefs were a load of hocus pocus, saying the Claimant’s plans to renew his wedding vows were a silly joke, giggling whenever the Claimant said he prayed and describing attending church as having a sing song.

The ET considered the 56 harassment claims made by the Claimant and also heard conflicting accounts from his manager. As the claims mostly related to the conduct of his manager and they worked together with no supervision it came down to which version of events the Tribunal believed more.

The majority of the time it appears they preferred the manager’s version of events as only 8 of the Claimant’s claims were accepted, in many cases there was little or no reasoning for accepting the manager’s account. This was partly due to many of the harassment claims for race and sexual orientation being rejected as the Claimant was not of the race/sexual orientations the conduct was related to.

Harassment is defined in the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. In the ET’s mind this meant that only a person of the relevant protected characteristic could be affected by the conduct.

The Claimant appealed and the EAT accepted the appeal. It found that the Tribunal had erred in law by finding that the Claimant could not make a claim of harassment if he did not share the protected characteristic that the conduct was aimed it.

The take away point from today is that an employee does not have to share a protected characteristic in order to claim harassment. This is the correct stance to take as the original ET judgment suggests that a person could behave however they wanted and so long as a colleague who shared the same protected characteristic did not hear the conduct the conduct was not offensive.

The fact that the two colleagues often worked together unsupervised meant the employer could find it difficult to make the correct decision if a grievance is brought. However in this instance the sheer amount of offensive behaviour suggests the Claimant was not making it up. Furthermore a previous case on harassment taught us that these issue can even TUPE over in certain circumstances.