Veitch Penny LLP - Exeter | Crediton, Devon

Case

Gravell v Bexley London Borough Council
Employment Appeal Tribunal - 2 March 2007

Issues

1. The Race Relations Act 1976 (“the Act”)
2. Racial harassment
3. Acts of third parties

Facts

Ms Gravell, a white woman of British/English nationality, was employed as a Prevention and Advice Officer in the authority’s housing department. Following her dismissal she presented a number of claims including allegations of racial harassment contrary to Section 3A of the Act which provide that:

“3A Harassment
A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in Section 1(1B) where, on the grounds of race, 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 paragraphs (a) or (b) of Sub-section (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should be reasonably considered as having that effect”.

Her allegations were:
(i) At commencement of her employment she was told it was the authority’s policy to ignore racist comments made by customers and that she was not to inform them that those comments were unacceptable. This was denied by the authority.

(ii) That the same instruction was given to her by the authority’s chief executive officer at a later course.

(iii) Customers had used racist comments in her presence without being able to point out that the comments were unacceptable. She had found this offensive and upsetting.

(iv) That she had received text messages from colleagues including racist jokes, the contents of which were not acted upon by the authority when she complained.

At a pre-hearing review the claims relating to the use of a racist term and the text messages from colleagues were struck out as the chairman held that she was unlikely to be successful following the case of Pearce v Governing Body of Mayfield School [2004]. The chairman also found it was unlikely that the text messages amounted to harassment within the definition of the Act.

Ms Gravell appealed the matter.

The Employment Appeal Tribunal (EAT) had to consider:
1. Whether the Tribunal was prevented by the judgment in Pearce from finding that an employer had responsibility for harassment committed by a third party.

2. Whether the chairman had been wrong to find that the complaint regarding the text messages had no reasonable prospect of success.

Decision

The appeal would be allowed and referred back to a differently constituted Tribunal.

1. The EAT felt that if there was a policy not to challenge racist behaviour and that policy had the subsequent effect of creating an offensive environment, then it was capable of falling with Section 3A of the Act, if that could be established by evidence. The EAT felt that the chairman had been wrong in applying the decision in Pearce, as further evidence needed to be heard on this issue.

2. In respect of the text message complaint Ms Gravell had made allegations against the authority which had been denied. Again, the EAT felt that a Tribunal would need to hear evidence from the parties in order to make a determination whether or not the conduct could amount to harassment under Section 3A. This part of the claim should not have been struck out.

Comments

This case suggests that it is possible for a policy of not challenging racist remarks to be sufficient to constitute an act of racial harassment by an employer in itself.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.