Thomas v Robinson [2003] IRLR 7

This case considered the law relating to racial harassment. An Employment Tri-bunal found that the Applicant, who is of black Afro-Caribbean origin, was discriminated against because of a racially insensitive remark made to her by a white work colleague. The employer appealed to the Employment Appeal Tribunal (EAT) on both procedural and substantive issues. Firstly on the basis that they had not been permitted to cross examine the Applicant which meant they had not had a fair hearing and secondly, that the Tribunal had erred in law by failing to address whether the Applicant had suffered any detriment as a result of the remark made by the work colleague.

The EAT upheld the employer's appeal. They found that it was an error of law to reach a conclusion without considering whether the Applicant had suffered some detriment as a result of the remark. The EAT acknowledged that the very act of abusing someone in respect of their race is in itself less favourable treatment on racial grounds. However, the EAT held that it is not simply the end of the matter, because the Applicant must show that the employer has subjected her to 'any other detriment' as required by Section 4 of the Race Relations Act 1976.

The EAT viewed the expression 'harassment' as consisting of two elements. The first being the targeting of the person being harass-ed. The second is the causing of distress to the individual. A Tribunal which is considering whether an employee has been discriminated against should therefore consider both whether the language has been used and whether the employee has suffered a detriment as a result.

Under the consultative draft Race Relations Act (Amendment) Regulations, there is now a new specific definition of racial harassment. The Act provides that 'a person subjects another to harassment É where, on the grounds of the other's race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of (a) violating the other's dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that other'. The Act then goes on to provide that conduct shall be regarded as having the effect specified in paragraphs (a) and (b) if and only if having regard to all the circumstances it should reasonably be considered as having that effect.

The EAT, however, suggests that there are some working environments in which racial abuse is given and taken in good part by members of different ethnic groups. In such cases the mere making of a racist remark will not be regarded as a detriment. 
In reality this is an oversimplification. Individuals may only appear to take such harassment 'in good part', yet feel humiliated and outraged. It is as if the EAT considers that turning the other cheek means that the first cheek does not hurt, which in reality is rarely the case.

The case is a reminder of the importance of establishing every part of a claim for discrimination - to ensure that each part of the definition has been made out and that what might seem obvious to the advisor, may not be obvious to the Tribunal. It is extremely important to ensure that the Tribunal has evidence on which to make a finding of detriment. This will involve the Applicant giving evidence of how he or she felt about the comment or behaviour in question and there maybe contemporaneous evidence too. Such as where there have been internal proceedings - for example a grievance hearing or letter in which the offence or distress is men-tioned. Another possibility is where colleagues have witnessed the com-ments and seen the distress caused, and perhaps seen through an App-licant's attempts to brush it off or put on a brave face. Or evidence from colleagues of the Applicant complaining privately or describing their feelings, even if the issue was not taken formally to management at the time. All these will add to the Applicant's credibility and enable a Tribunal to see the harm caused by comments and behaviour that might otherwise seem inoffensive when recounted in the quiet and neutral surroundings of an Employment Tribunal.