In a recent case, a salesman who had been called a “fat ginger pikey” by his work colleagues lost his claim in the Employment Tribunal.
The salesman brought a claim for harassment when, amongst other things, his colleagues called him “salad dodger”, “fat Yoda” and “jellied eel salesman”. Despite him having links to the traveller community, the Tribunal found that he did not react or complain at the time about the comments made and the Tribunal believed that he would have done had he found them offensive. The Tribunal found that he had not been subject to harassment.
So what does amount to harassment?
The Equality Act 2010 defines harassment as unwanted behaviour which an employee finds offensive or which makes them feel intimidated or humiliated. It is a form of discrimination and can take the form of spoken words, images and graffiti, physical gestures and offensive emails or comments on social media. It can even include jokes.
However, harassment is only unlawful under the Equality Act if it’s because of or connected to one of these categories: sex, race age, disability, gender reassignment, religion or belief and sexual orientation. These categories are known as ‘protected characteristics’ and any discrimination claim (which includes claims of harassment), must be based upon an argument that the discrimination occurred because of the protected characteristic.
The Tribunal must also find that the employee was genuinely offended or upset by the act which, in the above, it found he was not.
Whilst discrimination claims must be based upon bad or worse treatment because of a protected characteristic that is not to say that an employee who is being bullied at work has no remedy. For example, due to a personality clash, an employee might feel bullied by their manager but may be unable to say that bullying is because of their age, sex, race etc. In those circumstances the first thing the employee should do is to raise a written grievance. Every employee, regardless of their length of service, has the right to raise a grievance and that should be dealt with properly. The grievance should be investigated and then a meeting should take place between the employee and their employer after which an outcome is given. If the employee is dissatisfied with that outcome, then they can appeal.
Bullying at work can have serious consequences for the employee concerned and often leads to anxiety, depression, absence or simply poor performance. Even if it may not amount to an act of discrimination, it may lead to a constructive dismissal claim.
Discrimination is a complex area of employment law and discrimination claims are very expensive and time-consuming to deal with. They are also often publicised in the press and on social media and can cause huge reputational damage to the company concerned. It is always a good idea to take legal advice at an early stage before a claim reaches an Employment Tribunal.