Harassment and the Test of Reasonableness

On 7th April 2022, the EAT’s judgment in Ali v (1) Heathrow Express and (2) Redline Assured (2022) EA-2021-000353, was promulgated. Here the claim was for harassment on the grounds of the claimant’s religion. The Tribunal concluded that the harassment claim (under s.26 EqA 2010) should fail – on the grounds that it was not reasonable for the claimant to perceive the particular conduct as having the effect of creating a hostile or offensive or intimidating environment. The Second Respondent was responsible for carrying out security checks and found the words “Allahu Akbar” written in Arabic on a container. The images of the container and the note were circulated by email for the purposes of reporting on the results of the test. The Claimant, who was Muslim, objected to this and claimed religious discrimination and harassment. The Tribunal said the claimant should have understood that the second respondent was not seeking to associate the Muslim religion with terrorism, but was re-producing it as a possible suspicious item given the same words had been used in recent incidents by terrorists at the airport. In other words, the claimant may have been genuinely offended, but his reaction was not reasonable, and in not being reasonable, the claim could not succeed. The EAT upheld the Tribunal decision.

This raises interesting questions considered further below:

What if a perpetrator propositions the victim for a sexual relationship (but not in a lewd or crude way), this is unwanted by the victim, the victim makes this clear and the perpetrator stops?

What if, with any form of harassment, it is a single incident and the respondent argues that the claimant or victim has not had a reasonable reaction to the harassment?

Where the alleged harassment is caused by a protected characteristic and the claimant asserts that it has the cause or effect of creating a hostile environment, what place is there for an objective test?

Where the actions are sexual in nature, and are unwanted, and have the effect (if not the intention) of creating a hostile environment. But how would a court approach this, in terms of objective/subjective viewpoint, where the perpetrator genuinely believed it was or might have been wanted?

SINGLE INCIDENT

Bracebridge Engineering Ltd v Darby [1990] IRLR 3:

–        First case in which the EAT grappled with what constituted sexual harassment, and whether a single incident could amount to harassment for the purposes of the legislation (as it was then).

–        EAT held: whether a single incident of sexual conduct can constitute sexual harassment depends on the context and circumstances of the case, but a single incident could potentially constitute harassment, if sufficiently serious.

–        An incident, in this case, in which a male manager touched a female employee’s private parts in the workplace without her consent, was serious enough on its own to constitute sexual harassment.

Weeks v Newham College of FE UKEAT/0630/11, [2012] EqLR 788, EAT:

–        While a single act may be so significant that its effect was to create the proscribed environment, it did not follow that every such act would, of itself, be sufficient to require such a finding in every case. Ultimately, findings of fact in harassment cases had to be sensitive to all the circumstances; context was all-important.

–        Whether the conduct is aimed at the C might be relevant; the fact and/or timing of any objection might also (though the absence of immediate complaint would not of itself mean the complaint is unjustified).

–        The ET must consider the relevant words in context, including other words spoken and the general run of affairs within the workplace.

EFFECT (NOT PURPOSE)

If the effect of the conduct is to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, then the perpetrator may be liable even if that was not the purpose of the conduct (s. 26(1)(b) EqA and Richmond Pharmacology v Dhaliwal).

In deciding whether the conduct had that effect, a tribunal must take into account (per s.26(4) EqA): (1) the perception of the victim; (2) the other circumstances of the case; and (3) whether it is reasonable for the conduct to have that effect.

Richmond [22], Grant [47] and Weeks [17, 20-21] – the words ‘intimidating, hostile, degrading, humiliating or offensive environment’ are an important control to prevent trivial acts causing minor upset being caught by the concept of harassment.

Richmond Pharmacology v Dhaliwal [2009] UKEAT 0458/01/1202:

–        Whether it is reasonable for the complainant to have been offended by the comment is a matter of factual assessment, for the Tribunal. It must have regard to all the relevant circumstances, including the context of the conduct in question. One question may be whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause the proscribed consequences.

o   “the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt”.

–        A victim’s claimed reaction to the unwanted conduct is unlikely to qualify if it is bizarre or hypersensitive.

[Pemberton v Inwood [2018] EWCA Civ 564, [2018] IRLR 542, Underhill LJ confirmed Richmond Pharmacology v Dhaliwal, applying it to the newer EqA 2010 legislation.]

NOT REASONABLE – Heafield v Times Newspapers Ltd UKEAT/1305/12, [2013] EqLR 345:

–        ET held there had been unwanted conduct, but the necessary purpose or effect had not been present; further, in any event, any insult felt by C was not reasonable. The purpose of the remark may be relevant in establishing the context of the remark.

NOT REASONABLE – Although the focus will be on the behaviour which is complained of as harassment, the conduct of the complainant themselves may not be entirely irrelevant. Tribunals will wish to be careful not to engage in ‘victim-blaming’, but the complainant’s own behaviour and perspective will be part of the context in which the alleged ‘harassment’ will have to be seen. E.G. in Pemberton v Inwood [2018] EWCA Civ 564: it was not reasonable for C to feel harassed, as he entered into his same-sex marriage knowing it was contrary to church doctrine and could have the consequence that his ministry licence be revoked.

Conclusion

With claims of harassment under s.26 Eq A 2010, there is a test of reasonableness, which is objective. The Claimant’s own genuine belief and perception is just one factor which the Tribunal will take into account when considered whether to uphold the claim. All conduct complained of must be considered in its context, including the reasons for the conduct and the past relationships between the perpetrator and the victim (Ali v Heathrow (above), applying Land Registry v Grant [2011] ICR 1390. Further, “not all unwanted conduct that relates to a protected characteristic and causes offence or upset will necessarily [cross the legal threshold of harassment]” per Auerbach HHJ in para. 42 of Ali).

© Farore Law, 2022