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Flawed Racial Harassment Ruling Overturned By Appeal Tribunal

Crown court
15th September 2014

An employment tribunal, which ruled in favour of a paralegal assistant who claimed unlawful harassment because she was Polish has been successfully appealed.

The original decision was found to be flawed by The Employment Appeal Tribunal (EAT), which stated that the conclusion reached was due to the application of incorrect criteria.

All of the original allegations of unlawful discrimination on the grounds of race and religion were dismissed by the appeal tribunal except for a single finding of harassment over an ‘overheard’ comment made by another member of staff to a client. The claimant alleges the comment overheard was “She is very nice but Polish”, while the member of staff insisted that he said “She is very nice and Polish”.

Attention focused on claimant’s race

At the original tribunal it was ruled unnecessary to decide who was telling the truth. Instead, the attention was focused on the claimant’s race, which should have been irrelevant to the introduction “and its inclusion suggested that it was used to patronise the claimant and to allude to some shortcoming perceived by [the member of staff] in light of the respondent’s concerns about the claimant’s performance which staff was reporting on regularly.”

At the time the tribunal concluded that it was clear the claimant had felt “humiliated and degraded” by the comment as it was “directly said about her and made within her hearing.” Despite being an isolated incident, the tribunal considered the comment “amounted to an act of unlawful harassment of the claimant because of her race.”

Two errors of law made

In a newly published ruling the EAT said it would have been “preferable” if the tribunal had decided who was telling the truth. The appeal tribunal found that two errors of law had been made. The first question, which had not been addressed was “whether the remark truly violated the claimant’s dignity or truly created an intimidating, hostile, degrading, humiliating or offensive environment for her.” Secondly, no consideration had been allowed over whether it was reasonable for the remark to have the resultant effect claimed.

The EAT ruled that the original decision could no longer stand, adding that, “If the employment tribunal had applied the correct legal test, only one answer was reasonably possible. It would be reasonable for an employer, introducing an employee who had a strong accent, to mention the employee’s nationality or race.
The single remark, whether it was in the terms suggested by the claimant or those suggested by the respondent, was not such as to violate her dignity or create a restricted environment for her.”