In this case, the EAT found that an employment tribunal was wrong to dismiss a claim of racial harassment because it failed to take into account the effect of the conduct on the victim.
Background
Unlawful harassment occurs where a worker is subjected to unwanted conduct by their colleagues or the employer, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading or offensive environment for them. It therefore covers cases where the purpose of the conduct was to harass as well as where, regardless of intent, it had a harassing effect. When considering whether conduct had a harassing effect, tribunals must take account all of the following:
- The employee’s perception
- The other circumstances of the case
- Whether it is reasonable for the conduct to have that effect
Facts
The claimant, Mr Logo, commenced employment with the respondent in November 2016. He describes himself as Black British and presented a claim of race discrimination to the Employment Tribunal (ET) in March 2021. Mr Logo brought several claims of racial harassment which related to incidents over a number of years. They included:
- An incident at a company event in 2016, where a white colleague dressed as Whoopi Goldberg's character from "Sister Act" with black face paint, causing Mr Logo significant distress.
- That in June 2019 a colleague made a crude ‘joke’ over dinner involving a black man and an animal.
- In December 2020, a video advert for “Pure Blonde” beer – depicting a world of white, blonde people – was shared on a team WhatsApp group where Mr Logo was the only black member. Mr Logo believed the advert appeared to promote an all-white utopia and associated that with the ideology of Nazis “both historically and in the present day as it pertained to the ‘pure Aryan race’.”
The ET held that the first two incidents had taken place and amounted to racial harassment because of their effect on Mr Logo but it dismissed the claims because they were outside the time limit. The ET refused to extend the time limit because the delay meant the witnesses would not be able to recall the incidents accurately. The ET held that the third incident was not related to race and therefore rejected the claim. Mr Logo appealed.
The Employment Appeal Tribunal (EAT) upheld the appeal. The ET 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 Mr Logo. Therefore, the ET was 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 ET had also failed to properly balance the prejudice to the claimant against that to the respondent. The EAT found that the respondent had conceded the conduct amounted to harassment and therefore there was no real prejudice caused by the delay whereas the claimant would be left without a remedy if the ET did not extend time.
The ET was also wrong to decide that the video clip did not relate to race so could not be harassment. The ET had failed to adequately consider Mr Logo's perception and the broader context of the "Pure Blond" advert. The ET had focussed on the lack of intent of the person who posted it and not the effect on Mr Logo.
The claim was remitted to the ET to reconsider whether it was just and equitable to extend the time limit and whether the video clip had the effect of harassment.
What does this mean for employers?
This case reinforces that harassment can be established even if the perpetrator did not intend to offend. The “effect” on the employee is critical. Employers and employees should be aware that jokes, costumes, or media shared in the workplace—even if intended as humorous—can have serious implications if they relate to race or other protected characteristics. The context, including who is present and how the content is shared, matters greatly.
Employers should ensure that their staff are trained to understand the impact of their behaviour and that complaints are taken seriously and investigated promptly.
