Veitch Penny LLP - Exeter | Crediton, Devon

Case

Richmond Pharmacology v Dhaliwal
Employment Appeal Tribunal – 19 January 2009

Issues

(1) Race Relations Act 1976 (as amended)
(2) Definition of harassment
(3) Protection from Harassment Act 1997

Facts

Miss Dhaliwal worked as a project manager for the Respondent company which conducts clinical trials in new medications. She was British and of Indian ethnic origin. During the course of her employment, conversations had taken place with her manager referring to the possibility of visiting India, and of getting married in the future and giving up work.

In August Miss Dhaliwal gave one month’s notice of resignation. There had been an ongoing issue regarding a variation of her contract of employment and the length of notice she was required to give under it. Given her senior position, the amount of notice that she gave caused problems for the Respondent company. The working relationship became strained and her manager, Dr Lorch became concerned about her performance.

In September 2007, there was a meeting between Dr Lorch and the Claimant. He told her that her work had deteriorated and urged her to ensure that she worked out her notice in a professional manner. He pointed out that after she had left the business their paths would probably continue to cross. The Tribunal made a finding of fact that Dr Lorch had said to the Claimant that “we will probably bump into each other in future, unless you are married off in India”.

The Claimant was very upset at the remark. She submitted a grievance which was not resolved to her satisfaction.

She brought a claim to the Employment Tribunal of harassment under section 3A of the Race Relations Act 1976.

She was successful at the Tribunal and awarded £1,000. The employer referred the matter to the Employment Appeal Tribunal (EAT). The EAT reconsidered the definition of harassment and broke it down into a number of questions. They were:

1. Did the Respondent engage in the unwarranted conduct alleged?
2. Did the conduct have either (a) the purpose or (b) the effect of either:
(i) violating the Claimant’s dignity or
(ii) creating an adverse environment for her?
3. Was the conduct on grounds of the Claimant’s race (or ethnic or national origin?)

Decision

The EAT confirmed that the incident did constitute harassment under the Act.

Comments

The EAT issued some useful guidance as to the application of these tests. It confirmed that the old case-law relating to harassment pre-dating the definitions above were unlikely to be helpful, as they related to old statutory definitions. Furthermore, it also concluded that the case-law deriving from the Protection from Harassment Act 1997 is also of little assistance in the interpretation of this definition.

It also noted that the use of the words “purpose” and “effect” in question 2 above could mean that a Respondent may be held liable if the effect of the act violated dignity or created an adverse environment, even if the Respondent did not intend to bring that about. Alternatively, a Respondent may be liable if he acted for the purposes of producing the effect of violating dignity or creating an adverse environment, but did not in fact do so (although this would be rare). Tribunals should look at the effect rather than the purpose of the act although the EAT did note that an act or remark is likely to take a different weight if it had been intended to cause offence. However, this must be taken in the context of being reasonable for such conduct to have had the effect i.e. the victim must have felt or perceived that their dignity was violated or an adverse environment created. This will of course depend on the context and the circumstances. Finally, the conduct should be “on grounds of” race or ethnic origin.


Rachel Billen – Associate Solicitor, Employment 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.