Key takeaways
Victim impact is what really counts
Harassment is judged by how it affects the person.
Tribunal overlooked key evidence of harm
Delays and perception should have been considered.
Employers must prioritise employee experience
Investigations should assess the real impact on staff.
Unlawful harassment occurs where a worker is subjected to unwanted conduct by the employer or its workers, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading or offensive environment for them. The EAT has recently held that an employment tribunal was wrong to dismiss racial harassment claims because of errors in its approach to consideration of those claims.
A black employee, L, claimed racial harassment against his employer. He relied on various incidents of alleged racial harassment spreading over many years, including the following three notable incidents:
a work colleague attending the works Christmas party in 2016 in ‘black face’ fancy dress;
a work colleague telling a crude racist joke over dinner in June 2019; and
the circulation of a beer advert in a work WhatsApp group in December 2020 which depicted an all-white ‘Aryan-race’ type utopia where everyone was white and blonde.
The employment tribunal held:
the first two incidents had occurred, and they both amounted to racial harassment. However, it dismissed these claims on the basis they had been brought outside the time limit. The tribunal also refused to extend time on the basis that the delay in bringing those claims meant the recollections of the two accused individuals would be impacted.
the third incident was not ‘related’ to race and therefore did not amount to racial harassment.
The EAT upheld L’s appeal – the tribunal had erred when it dismissed L’s claims. The EAT emphasised that a harassment claim can be brought based on the effect of the behaviour on the victim regardless of the intention of the accused perpetrators. With this principle firmly in mind, the EAT held that:
the tribunal had erred when it dismissed the first two allegations. It had determined the incidents had occurred and that they had had a harassing effect on L. Therefore, the tribunal had been wrong to take account of the impact the delay would have on the recollections of the perpetrators of these incidents – that was an irrelevant consideration. When considering whether to extend time, the tribunal had also failed to consider that L would be caused significant prejudice by its refusal to do so because this would leave him having been denied a remedy for acts of racial harassment that the tribunal had held had occurred; and
the tribunal had also erred when it concluded that the video clip depicting an all-white utopia did not relate to race and could not amount to harassment. The tribunal’s analysis had placed too much focus on whether the person who had posted the video clip in the work WhatsApp group thought it was funny (i.e. focussed too closely on the intention of the accused perpetrator). The tribunal had failed to properly consider L’s perception of the video as the only black member of a work-related WhatsApp group in which the video had been posted without any context (i.e. had failed to focus closely enough on the effect this incident had had on L).
The case is a powerful reminder of the core principle that harassment claims can be brought based on the subjective ‘effect’ the behaviour complained of has had on the alleged victim, irrespective of whether the harasser ‘intended’ their conduct to have that harassing effect. This is an important nuance that is sometimes missed by employers when harassment complaints are investigated.
