This post is less about the law and more about a point that arises in equality and diversity training.
In Quality Solicitors CMHT v Tunstall (2014) UKEAT/0105/14/RN HHJ Richardson considered the circumstances in which a single remark could amount to harassment.
The Claimant, Ms Tunstall is Polish. She studied law in Poland before coming to the UK more han 20 years ago. She obtained a UK law degree. When interviewed by the Respondent for the position of a paralegal, the panel is described as having been impressed with her performance, but concerned by what the Tribunal described as her “heavily accented spoken English.” The contract was over a period of six months with a two month probationary period.
The employment was not successful. The Claimant made wide ranging allegations of unlawful discrimination on the grounds of race and religion. The Tribunal found that concerns over the Claimants performance issues were legitimate and dismissed the majority of the claims.
However, one claim was successful. That claim hinged on one of the following two statements being made. Namely:
“She is Polish but very nice.” Or “She is Polish and very nice.”
The Tribunal did not make a finding of fact as to which statement was actually said. The failure to make that finding of fact was criticised by the EAT (para 19).
The EAT identified the law in respect of s.26 Equality Act 2010, together with the leading case of: Richmond Pharmacology v Dhaliwal  IRLR 336.
The EAT accepted the submission that the Tribunal at first instance misdirected itself in law. The Tribunal at first instance did not directly address the question as to whether the remark violated the Claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for her. Furthermore, the Tribunal did not address to any significant extent, the wording of s.26(4) Equality Act 2010 to examine whether it was reasonable for the remark to have the effect in question.
The fact that the EAT found that a Tribunal misdirected itself in law is unexceptionable. What is interesting is that the EAT rather than remitting the matter to enable the correct test to be applied, determined the claim for itself and held that there was no harassment. The EAT went so far as to state:
“We have, however, reached the conclusion that, if the Employment Tribunal had applied the correct legal test, only one answer was reasonably plausible. The single remark, whether it was in the terms suggested by the Claimant or those suggested by the Respondent, was not such as to violate her dignity or create the proscribed environment for her. On any view, it was an introductory made to a client for the purpose of encouraging the client to be given the services of a paralegal assistant.”
The difficulty with the conclusion cited in the paragraph above is that the EAT felt that there was only one reasonable view of the remark. The Claimant did not appear at the EAT and that may have affected the remission decision.
Yet, the point that I have difficulty with is, why was it necessary to refer to the Claimant’s nationality at all? There is some discussion of the Claimants case in this respect at paragraph 19, though it is limited.
When I provide equality and diversity training, I often use the following example to provoke debate. The comment is made in the context of one work colleague to another, referring to a third colleague who is not present.
“Oh yes, he is gay. But he is very good at his job.”
The purpose behind using this example is to identify a) why the comment may constitute harassment and b) to identify that a positive comment, praising someone’s performance can still raise issues of equality and diversity.
The comment in the present case struck me as having similarities with this example. It is right to say that each case is fact specific, but in this case, the EAT did not simply state that the original Tribunal erred in law. Rather it held that only one result was ever possible and dismissed the claim entirely.
You can find out more about the training that I provide here