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In harassment claims it is the ‘purpose’ or ‘effect’ of the behaviour which is relevant
The legal provisions dealing with workplace harassment in the Equality Act 2010 state that: “A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” They go on to say that in deciding whether conduct has the effect referred to, each of the following must be taken into account – “(a) the perception of B; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect”.
In the recent case of Sidhu v Our Place Schools Limited the EAT looked at the definition of harassment and stressed the importance of considering whether the conduct had the ‘purpose’ or ‘effect’ required to support a claim. Mr Sidhu was employed as a weekend support worker. He was a Sikh. In the context of a discussion with a colleague regarding Sikh executions by Muslims in the 17th Century, a colleague made a ‘sawing gesture’. Separately, another colleague made a comment that there were not many ‘coloured people’ in Herefordshire. Mr Sidhu claimed harassment on grounds of religion and race. The EAT agreed with the tribunal that these instances, which were found to have occurred, did not constitute unlawful harassment. Importantly, they looked closely at the context involved and held that, in neither instance was the ‘purpose’ of the behaviour to harass Mr Sidhu. It also found that it did not have the ‘effect’ on Mr Sidhu that he later claimed. He had not complained at the time or for several months following the incidents. In terms of the alleged ‘sawing gesture’ this had been in the context of a discussion about Sikh history with a knowledgeable colleague. They found that even if it had had the proscribed ‘effect’ it would not have been reasonable for it to have done so.
This case skirted very close to the line on workplace harassment and employers should make sure that they carry-out clear and detailed training on diversity, equality and bullying and harassment so that employees are aware of issues surrounding differences in culture, religion and race.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539