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One-off remark about Polish accent did not amount to harassment

Under S.26(1) of the Equality Act 2010 (EA 2010) harassment occurs where there is unwanted conduct related to a protected characteristic which has the purpose (intentionally) or the effect (unintentionally) of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee.

Under S.26(1) of the Equality Act 2010 (EA 2010) harassment occurs where there is unwanted conduct related to a protected characteristic which has the purpose (intentionally) or the effect (unintentionally) of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee. Under S.26(4), where the effect is unintentional, then in deciding whether harassment has occurred the tribunal must take into account the Claimant’s perception of the behaviour, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

In Quality Solicitors v Tunstall, Tunstall is of Polish origin. She has a distinct Polish accent. One of her claims to a tribunal was that she had been subjected to racial harassment. Tunstall alleged that she had overheard a colleague say to a client “she is Polish but very nice”, but the colleague was clear that he had said “she is Polish and very nice”. The tribunal upheld Tunstall’s claim. In its view whether “but” or “and” had been used was irrelevant as firstly it was unnecessary for Tunstall’s nationality to be mentioned to a client at all and secondly, in the circumstances the comment had been motivated by nationality and, therefore, Tunstall must have been humiliated.

The EAT held that the tribunal had erred in law in failing to address the question whether the remark alleged had the effect of violating Tunstall’s dignity or creating an unpleasant environment for her and also failing to address and give reasons why it was reasonable for the single remark to have the effect in question. With regard to the second aspect,   the EAT emphasised that previous case law, Grant v HM Land Registry [2011] IRLR 748, had stressed the importance of S.26(4) EA 2010 as an “important control to prevent trivial acts causing minor upsets being caught by the concept of harassment”.  If the tribunal had applied the law correctly, only one result was reasonably possible – namely a finding that the single remark did not have the effect in question and did not constitute racial harassment. 

The EAT emphasised that it should be remembered that one incident can, on its own, amount to harassment as had been found in Richmond Pharmacology v Dhaliwal [2009] IRLR 336, where a manager’s reference to the possibility of an employee being “married off in India” was found to amount to harassment, even though it was a one-off remark. However, it all depends on the circumstances of the case and all elements of S.26(4) must be addressed. In this case, the tribunal’s own finding was that Tunstall was a sensitive woman who took things to heart and this was a primary factor to be taken into account in deciding whether it was objectively reasonable for the remark to have had such an effect that it amounted to unlawful harassment.  

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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