United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SHANTANU MAJUMDAR (of Counsel) Instructed by: Messrs Edwin Coe LLP Solicitors 2 Stone Buildings Lincoln's Inn London WC2A 3TH
For the Respondent	MR STEPHEN WOODMAN (Solicitor) Messrs Lyons Davidson Solicitors Jago House 692 Warwick Road Solihull West Midlands B91 3DX


 


SUMMARY

HARASSMENT: Purpose

Tribunal was entitled to find that a remark made by an employer to a female employee of Indian ethnic origin referring to the possibility of her being "married off in India" had the effect of violating her dignity and constituted harassment within the meaning of s. 3A of the Race Relations Act 1976

Observations on the approach to be taken by Tribunals in considering claims of harassment under the 1976 Act and the equivalent provisions of cognate legislation


 


THE HONOURABLE MR JUSTICE UNDERHILL

1. This is an appeal against the judgment of an Employment Tribunal sitting at London South and chaired by Employment Judge Cheetham, upholding a claim for racial harassment contrary to s. 3A of the Race Relations Act 1976 and awarding the claimant compensation in the sum of £1,000 for injury to feelings. The appellant employer, to which we will refer as the company, was represented before us by Mr Shantanu Majumdar of Counsel and the Respondent, to whom we will refer as the Claimant, by Mr Stephen Woodman of Lyons Davidson.

THE FACTS

2. The company is a contract research organisation which conducts clinical trials mostly in new medicines. The Claimant is British and has lived in England all her life; but she is of Indian ethnic origin. She was employed by the company from December 2002 to 14 December 2007. She started as a Clinical Research Assistant, but in June 2006 she was appointed a Project Manager in the Clinical Department. She was evidently good at her job and until the last few weeks of it she apparently had a good working relationship with her managers, and specifically with Dr Ulrike Lorch, who was one of the founders and co-owners of the company and its Medical Director.
3. On 13 August 2007 the Claimant gave one month's notice of resignation. Given her senior position and responsibility as a Project Manager, this caused real problems for the company: an agreement had in fact been reached some time previously that the Claimant would give a minimum of two months notice in the event that she wished to resign, but that agreement had never been formally incorporated in the contract. This imposed some strains on the relationship between the Claimant and Dr Lorch. There were problems about untaken holiday and about whether the Claimant should be expected to come into work during a tube strike. Dr Lorch's perception was that the quality of the Claimant's work began to fall off.
4. Against that background a short meeting took place between the Claimant and Dr Lorch on 3 September 2007, at which Dr Lorch told the Claimant that her work had deteriorated and that she should make sure that she worked out her notice in a professional way. In that context, Dr Lorch wanted to make the point that even after the Claimant left the company their paths would probably continue to cross. There was a dispute before the Tribunal about exactly what she said, but on the Tribunal's finding it was as follows:

"We will probably bump into each other in future, unless you are married off in India".

The essential factual dispute which the Tribunal had to resolve about that remark was whether Dr Lorch had said "married off" rather than, as she herself claimed, "married or".

5. The Claimant was very upset by that remark and said that she would not proceed any further without someone from HR being present. The meeting terminated. The Claimant subsequently took out a grievance but it was not resolved to her satisfaction.
6. It is right to note that Dr Lorch's references to marriage and to India did not come out of the blue. She gave evidence, and the Tribunal accepted that the Claimant had on more than one occasion referred to the possibility of getting married and giving up work: that had, for example, been one of the reasons that she gave for not being prepared to agree to the three-month notice period which the company had originally wanted. Dr Lorch had also had a longer discussion with the Claimant about marriage while they were on a business trip together; during that conversation the Claimant had said that her parents wanted to see her get married. As for the reference to India, the Claimant had recently told Dr Lorch that she would shortly be visiting India.

THE STATUTORY PROVISIONS

7. It is convenient to start by setting out the terms of s. 3A of the 1976 Act, which is headed "Harassment":

(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1 (1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of –

(a) violating that other person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.

8. The provisions "referred to in section 1 (1B)" include Part II of the Act, which applies to discrimination in the employment field. S. 3A was inserted, with effect from 19 July 2003, by the Race Relations Act 1976 (Amendment) Regulations 2003 in order to implement the terms of EU Council Directive 2000/43/EC ("the Race Directive"), which prohibits "direct or indirect discrimination based on racial or ethnic origin" (art. 2 (1)); and the terms of the section closely follow those of the Directive. Art. 2 (3) of the Race Directive reads as follows:

Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.

9. There are similar provisions in the other discrimination legislation – see s. 4A of the Sex Discrimination Act 1975; s. 3B of the Disability Discrimination Act 1995; reg. 5 of the Employment Equality (Religion or Belief) Regulations 2003; reg. 5 of the Employment Equality (Sexual Orientation) Regulations 2003; and reg. 6 of the Employment Equality (Age) Regulations 2006. All likewise derive from the requirements of EU Directives in substantially the same terms as art. 2 (3) of the Race Directive which I have set out above^[1].
10. As a matter of formal analysis, it is not difficult to break down the necessary elements of liability under s. 3A. They can be expressed as threefold:

(1) The unwanted conduct. Did the respondent engage in unwanted conduct?

(2) The purpose or effect of that conduct. Did the conduct in question either:

(a) have the purpose or

(b) have the effect

of either (i) violating the claimant's dignity or (ii) creating an adverse environment for her^[2] ? (We will refer to (i) and (ii) as "the proscribed consequences".)

(3) The grounds for the conduct. Was that conduct on the grounds of the claimant's race (or ethnic or national origins)?

11. But that formal breakdown conceals the fact that there are – or will at least in some cases be – substantial overlaps between the questions that arise in relation to each element. To take one obvious example, the question whether the conduct complained of was "unwanted" will overlap with the question of whether it creates an adverse environment for the claimant. There is also evidently a considerable overlap between the two defined proscribed consequences, notwithstanding that they are expressed as alternatives: many or most acts which are found to create an adverse environment for an employee will also violate her dignity (though it may be less general for the reverse to apply). The tribunal's eventual decision may often depend on what are, in practice, undifferentiated factual issues which cover more than one element in the analysis. Nevertheless, it will be a healthy discipline for a tribunal in any case brought under this section (or its equivalents in the other discrimination legislation) specifically to address in its reasons each of the elements which we have identified, in order to establish whether any issue arises in relation to it and to ensure that clear factual findings are made on each element in relation to which an issue arises.
12. We would make four other points which we hope may be of assistance to tribunals seeking to apply s. 3A.
13. First, such case-law as there was in relation to "harassment" as a variety of discrimination prior to the implementation of the Directive is unlikely to be helpful. We do not say there may not be some general observations to be found in that case-law which are equally applicable to claims under the new legislation. But the old law was constructed, somewhat uncomfortably, out of the general statutory definitions of discrimination. The new law, by contrast, derives from discrete statutory provisions with a completely different provenance, and reading across from one to the other is likely to hinder more than it helps. Still less is assistance is likely to be gained from the entirely separate provisions of the Protection from Harassment Act 1997 and the associated case law: in this regard Mr. Majumdar expressly disavowed any contention that harassment for the purpose of s. 3A had to amount to a "course of conduct" as defined in the 1997 Act.
14. Secondly, it is important to note the formal breakdown of "element (2)" into two alternative bases of liability – "purpose" and "effect". That means that a respondent may be held liable on the basis that the effect of his conduct has been to produce the proscribed consequences even if that was not his purpose; and, conversely, that he may be liable if he acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so).^[3] It might be thought that successful claims of the latter kind will be rare, since in a case where the respondent has intended^[4] to bring about the proscribed consequences, and his conduct has had a sufficient impact on the claimant for her to bring proceedings, it would be prima facie surprising if the tribunal were not to find that those consequences had occurred. For that reason we suspect that in most cases the primary focus will be on the effect of the unwanted conduct rather than on the respondent's purpose (though that does not necessarily exclude consideration of the respondent's mental processes because of "element (3)" as discussed below).
15. Thirdly, although the proviso in s-s. (2) is rather clumsily expressed, its broad thrust seems to us to be clear. A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That, as Mr Majumdar rightly submitted to us, creates an objective standard. However, he suggested that, that being so, the phrase "having regard to … the perception of that other person" was liable to cause confusion and to lead tribunals to apply a "subjective" test by the back door. We do not believe that there is a real difficulty here. The proscribed consequences are, of their nature, concerned with the feelings of the putative victim: that is, the victim must have felt, or perceived, her dignity to have been violated or an adverse environment to have been created. That can, if you like, be described as introducing a "subjective" element; but overall the criterion is objective because what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions, it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section. Whether it was reasonable for a claimant to have felt her dignity to have been violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.^[5] See also our observations at para. 22 below.
16. Fourthly, "element (3)" involves an inquiry which will be very familiar to tribunals from other types of discrimination claim. There is ample case-law on the nature of the inquiry required by the (interchangeable) statutory phrases "on the grounds of" or "by reason that": see, classically, the speeches of Lord Nicholls in Nagarajan v London Regional Transport [2000] 1 AC 501, at pp. 510-513, ([1999] ICR 877, at pp. 884-6) and Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 at para. 29 (p. 1072). Mr Majumdar made it clear that no issue arose on this point in the present appeal. But we should observe that the inquiry into the perpetrator's grounds for acting as he did – or, to use Lord Nicholls' phrase, "the reason why" he acted - is logically distinct from any issue which may arise for the purpose of "element (2)" about whether he intended to produce the proscribed consequences: a perpetrator may intend to violate a claimant's dignity for reasons other than her race (or indeed any of the other reasons proscribed by the discrimination legislation). It is also worth observing that, although establishing the reason why a respondent in a discrimination case acted in the way complained of typically involves an examination of the "mental processes" (using, again, Lord Nicholls' terminology) of the decision-taker, that is not always so. In some cases, the "ground" of the action complained of is inherently racial. The best-known example in the case-law, though in fact relating to sex discrimination, is the decision of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 ([1990] ICR 554). In that case the criterion applied by the Council inherently discriminated between men and women, and no consideration of the thought processes of the decision-makers was necessary: the application of the inherently discriminatory criterion could without more be identified as "the reason why" the plaintiff had suffered the detriment of which she complained. It is only because in most cases the detriment complained of does not consist in the application of an overtly discriminatory criterion of that sort that the "reason" (or "grounds") for the act has to be sought by considering the respondent's motivation (not motive). It seems to us particularly important to bear that point in mind in harassment cases.^[6] Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes.

THE TRIBUNAL'S REASONS

17. At para. 3 of the Reasons the Tribunal identified the questions which it had to answer as follows:

(i) What were the actual words spoken ("the conduct")?

(ii) Was the conduct complained of unwanted?

(iii) If so, was it on the grounds of ethnic origin?

(iv) If so, did the conduct have the purpose, alternatively the effect, of violating the Claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her?

(v) If it had that effect, should it reasonably be considered as having that effect, having regard to all the circumstances, including in particular the perception of the Claimant?

That in substance, though not in form, raises the same issues as identified by us at para. 10 above.

18. The Tribunal then set out the terms of s. 3A and made the findings of fact which we have already summarised. It proceeded to state its conclusions, succinctly but carefully, as follows:

26. Based upon these findings of fact, the Tribunal drew the following conclusions. This was a very difficult issue to resolve and the Tribunal spent considerable time in its discussions. It appreciated that this was a serious matter for both parties.

27. Taking each question in turn, the Tribunal concluded as follows:

(i) What were the actual words spoken ("the conduct")? As stated above, it is likely that the actual words were to the effect that: "we will probably bump into each other in future, unless you are married off in India"

(ii) Was the conduct complained of unwanted? This was an unwanted remark, but it was also unnecessary within the context of the meeting.

(iii) If so, was it on the grounds of ethnic origin? There was an explicit reference to India and the Claimant is of Indian origin. The reference to "India" and "married off" within the same sentence suggested a stereotypical view of women of that ethnic origin. In fact, regardless of whether the words were linked by "off" or "or", the Tribunal was likely to have considered that the sentence as a whole was unwanted conduct on the grounds of ethnic origin. The Tribunal could not accept that the context of the conversation explained the need to refer to the Claimant in this way.

(iv) If so, did the conduct have the purpose, alternatively the effect of violating the Claimant's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? The conduct did not have that purpose. The Tribunal was quite clear that it was not Dr Lorch's purpose to make a remark that amounted to racial harassment. This was an ill-judged remark, but not a deliberately racially offensive remark. Equally clearly, it had that effect, given the Claimant's immediate reaction and her continued sense of grievance.

(v) If it had that effect, should it reasonably be considered as having that effect, having regard to all the circumstances, including in particular the perception of the Claimant? This was an issue over which the Tribunal spent a great deal of time. It did not find that the Claimant's perception was over-sensitive. It was reasonable for her to make a connection between what was said and stereotypical views of Indian women and for her to find that offensive.

28. The Tribunal would note that it could not attach to this phrase the various levels of meaning suggested by both parties as to forced marriages, but that it was necessary to construe what was said any further.

29. Reflecting the fact that this was an ill-judged remark, rather than a comment that was intended to cause offence, and allowing for the fact that it was a single incident within an otherwise positive working relationship, the Tribunal considered that the amount of compensation for injury to feelings should be limited to £1,000.

THE ISSUES

19. The company's grounds of appeal are elaborately - we are bound to say, over- elaborately – pleaded over six pages, but Mr Majumdar said that the essence of the points that he wished to make were to be found in sub-paragraphs (a)-(d), which read as follows:

[The Tribunal]

(a) did not properly apply the statutory test contained in section 3A of the Race Relations Act 1976 (RRA"); and/or

(b) reached a decision as to the reasonableness in particular which no reasonable tribunal could properly have come to on the facts and/or the law;

(c) gave no or no sufficient reasons for vital aspects of its decision; and/or

(d) made findings of fact which were

(i) not available on the evidence or

(ii) required (and were not given) an explanation in the light of contrary evidence.

20. Those grounds are somewhat general, but the specific points emerging from Mr Majumdar's modest and thoughtful oral submissions can be summarised as follows:

(1) It was clear that the Tribunal had not found that Dr Lorch intended to violate the Claimant's dignity: this was an "effect" case. It is convenient to say at this stage that that submission is plainly correct.

(2) Although the Tribunal evidently found that Dr Lorch's remark had had the effect of violating the Claimant's dignity, it did not say what it was about the remark which had that effect. Mr Majumdar acknowledged that sometimes that would be self-evident, but he submitted that that was not so in the present case. He accepted that there was a recognisable racial stereotype that women of Indian ethnic origin were liable to be pressured by their families into marriage irrespective of their own wishes: we will refer to that stereotype by way of shorthand as one of "forced marriage", though we recognise that that may be a somewhat over-dramatic way of putting it. And he accepted that to have that stereotype applied could be offensive to a woman from that ethnic background. But, he said, the Tribunal did not expressly refer to the stereotype of forced marriage, and it was not clear that that was what it had in mind. If Dr Lorch's words could be taken as referring to any stereotype, it might only be to the possibility that the Claimant would enter into an arranged marriage. That is conceptually quite different from a forced marriage, and inherently less offensive: indeed the evidence was that the Claimant had herself told Dr Lorch in the course of the conversation referred to at para. 6 above that, while she was not herself intending to make an arranged marriage, she had no objection to the practice. Mr Majumdar emphasised that the Tribunal had said, at para. 23 of the Reasons, that it "did not attach as much importance to the word 'off'' as did the parties, and that observation was picked up in para. 27 (iii) which we have set out above. He said that that was important because it suggested that the Tribunal did not make its decision on the basis that Dr Lorch's remark evoked the stereotype of forced marriage, since the phrase "married off" was crucial to any such perception.

(3) To the extent that Dr Lorch's remark could be taken as referring to any stereotype – and particularly if it was a stereotype relating only to arranged marriage – it could not reasonably be regarded as "violating [the Claimant's] dignity". "Violation of dignity" was a strong phrase and should be construed as setting a fairly high threshold for liability. A passing comment of a rather oblique character such as that found against Dr Lorch could not pass that threshold. Either the Tribunal's conclusion to the contrary was perverse or, perhaps, it had fallen into the trap previously identified by Mr Majumdar (see para. 15 above) of applying an essentially subjective test.

21. We believe that it is plain that Dr Lorch's remark as the Tribunal found it to have been expressed – and specifically the phrase "married off" – did evoke the stereotype of forced marriage. It might have been better if the Tribunal had spelt that out, but in our view it is adequately clear. The Tribunal's observation that it did not regard the dispute as to whether Dr Lorch had said "off" or "or" as crucial did not, as we understand it, mean that it would have regarded a mere reference to the Claimant getting married, or getting married in India, as violating her dignity: rather, the Tribunal was saying that, whatever precise words were used, it was sufficiently clear from the context that Dr Lorch was referring to the possibility of a forced marriage. That observation may at first sight be a little surprising, though the Tribunal will have had a better feel for the context than we can have and much may have depended on what it understood Dr Lorch's tone to have been. But whether it is right or not, the question is academic because the Tribunal did find that the phrase used was "married off".
22. On that basis we cannot accept Mr Majumdar's submission that Dr Lorch's remark could not reasonably have been perceived as a violation of the Claimant's dignity. We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase. We accept that the facts here may have been close to the borderline, as the Tribunal indeed indicated by the size of its award. But we are satisfied that the Tribunal, which clearly considered the case most conscientiously, was entitled to hold that what it found Dr Lorch to have said did indeed fall on the wrong side of the line. We can see no error of law in its decision and this appeal must be dismissed.

Note 1    The position is complicated by the fact that s. 4A of the 1975 Act has been amended in various respects following the decision of Burton J in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327, in which he held that the statute failed properly to implement the requirements of the relevant Directive (in that case 2002/73/EC, since superseded by Directive 2006/54/EC); and specifically, so far as relevant for present purposes, that it failed properly to reflect the definition of harassment in the Directive. Burton J held that the phrase “on the ground of her sex” used in s. 4A, as in the other provisions identified above, was at least potentially narrower than “conduct related to the sex of a person”. S. 4A was duly amended (by the Sex Discrimination (Amendment of Legislation) Regulations 2008) in order to bring the drafting into line with the language of the Directive; but no such amendment has been made to any of the cognate statutes or regulations, notwithstanding that, as was expressly pointed out in argument before Burton J (see para. 7 of his judgment, at p. 330), the same point would appear to arise in relation to them also. However, the present appeal does not require us to express any view on this state of affairs.     [Back]

Note 2    At the risk of stereotyping, when discussing these provisions generally we will for convenience refer to the victim of harassment as “she” and the perpetrator as “he”.     [Back]

Note 3    Those alternative forms of liability could be described, from the perpetrator’s point of view, as “objective” and “subjective”; but using that terminology risks confusion with the separate question whether the effect on the victim should be judged “subjectively” or “objectively” – as to which, see para. 15 below.     [Back]

Note 4    We use “intend” as the equivalent verb to the noun “purpose” used in the statute: “purpose” as a verb has an archaic ring. In this context at least there is no real difference between the terms “purpose” and “intention”.     [Back]

Note 5    This is not to reintroduce a requirement of “purpose” by the back door: the point is not that the perpetrator cannot be liable unless he intended to cause offence but rather that, if he evidently did not intend to, it may not be reasonable for the claimant to have taken offence.     [Back]

Note 6    We understand this to be essentially the point being made by Sedley LJ at para. 40 of his judgment in the recent case of English v Thomas Sanderson Ltd [2008] EWCA Civ 1421.    [Back]