Richmond Pharmacology v Dhaliwal
In July 2003 racial harassment was expressly outlawed by the 1976 Race Relations Act (prior to that claimants had to make a claim of direct discrimination). In Richmond Pharmacology v Dhaliwal, the Employment Appeal Tribunal (EAT) said that all case law on harassment prior to the introduction of the statutory definition in 2003 was unlikely to be helpful.
Ms Dhaliwal started worked for the company in December 2002 as a research assistant and was promoted in June 2006 to project manager. The company had agreed with her that she should give two months notice but this had never been incorporated into her contract.
On 13 August 2007, she gave one month’s notice. She had a meeting with her manager, Dr Lorch, on 3 September, who told her that her work had deteriorated and that she should work out her notice in a professional way. She also commented that they would most likely bump into each other in future unless Ms Dhaliwal “was married off in India.”
Ms Dhaliwal was very upset by the remark and took out a grievance, which was not resolved to her satisfaction. She then brought a claim for harassment under section 3(A) of the 1976 Race Relations Act.
Dr Lorch said that Ms Dhaliwal herself had on more than one occasion referred to the possibility of getting married and giving up work. She also said that Ms Dhaliwal had told her that she would soon be visiting India and that her parents wanted her to get married.
Section 3(A) states that:
Harassment is unwanted conduct which has the purpose or effect of violating someone else’s dignity, or which creates an intimidating, hostile, degrading, humiliating or offensive environment for them.
The tribunal agreed with Ms Dhaliwal. It said that what Dr Lorch said (“we will probably bump into each other in future, unless you are married off in India") was both unwanted and unnecessary within the context of the meeting.
The comment was on the grounds of ethnic origin because the reference to "India" and "married off" within the same sentence suggested a stereotypical view of women from that part of the world.
Equally, the tribunal was clear that Dr Lorch had not intended to make a remark that amounted to racial harassment (it was ill-judged but not a deliberately racially offensive remark), but that it had had that effect and the tribunal felt it was reasonable for Ms Dhaliwal to find it offensive.
The EAT agreed with the tribunal, saying that caselaw on harassment before the statutory definition was introduced was unhelpful, as was caselaw under the Protection from Harassment Act 1997.
It made the following points:
- That there were now two types of liability under the law – “purpose” and “effect” – with the result that harassers may be held liable for the effect that their conduct has on someone even if that was not their purpose (and vice versa).
- That, in “effect” cases, although tribunals have to take on board the claimant’s feelings (the subjective element), overall they have to decide whether it was reasonable for the claimant to have experienced those feelings or perceptions (an objective standard)
- That tribunals must consider why the perpetrator acted as they did. This will usually (but not always) involve looking at the “mental processes” of the harasser. However, if the conduct consists of overtly racial abuse, tribunals do not need to consider the perpetrator’s “mental processes”
Having said all that, though, the EAT warned that it was important for employers and tribunals not to encourage a culture of hypersensitivity in respect of every “unfortunate phrase”. It accepted that the facts here were close to the borderline, but that the tribunal was entitled to conclude that Dr Lorch’s words did indeed fall on the wrong side of the line. The EAT noted that the size of the award (£1000 for injury to feelings) reflected the borderline nature of the case.
It is clear, from this case that, where a manager makes a comment which is not intended to harass but which is clearly based on discriminatory stereotyping, the employer may be held liable for unlawful harassment.