Question

Harassment in practice?

This exercise asks you to consider what behaviour actually amounts to harassment, with reference to two real cases.

Read the case summaries and the questions that follow below and then discuss these with your groupmates in the forum.

Richmond Pharmacology vs Dhaliwal (2009) IRLR 336

Dhaliwal is of Indian origin and was employed by Richmond Pharmacology. In conversation with the medical director of the company, he remarked to her “We will probably bump into each other in future – unless you are married off in India”. Dhaliwal claimed that this was racial harassment and the Employment Appeal Tribunal agreed.

(Adapted from Daniels, 2016)

Quality Solicitors CMHT vs Tunstall (2014) UKEAT/0105/14

Tunstall is Polish and worked for a solicitors’ firm. She overhead a colleague talking about her to a client who remarked “She is Polish, but she is very nice”. The colleague said that he actually commented “She is Polish, and she is very nice”. Tunstall made a claim of harassment, arguing that, regardless of the actual words spoken, an implication had been made that Polish people were not usually very nice. However, her claim was not successful, as the Employment Appeal Tribunal did not agree and ruled that this one comment was insufficient to amount to harassment.

(Adapted from Daniels, 2016)

Please add your thoughts on some of the questions below:

Both cases of harassment related to a single incident. Why do you think Dhaliwal’s claim was successful while Tunstall’s claim was unsuccessful?

Do you agree with the EAT’s ruling in the case of Tunstall?

Answer 1

In the case of Richmond Pharmacology vs Dhaliwal, the tribunal drew the following conclusions:

1. The tribunal tried to find out the actual words spoken, which were found out to be;

“we will probably bump into each other in future, unless you are married off in India”.

1. It tried to find out if the remark was unwanted;

It was unwanted but it was also unnecessary considering the context of the meeting.

1. If the remark had ethnic references;

There was an explicit reference to India. Moreover, the word “married off” pointed out to a stereotypical mindset that women in India are forced to get married without their consent.

1. If the remark was intended to violate the dignity of the claimant;

The tribunal was clear that the remark was ill-judged, but it was not a deliberate racial comment.

1. If the effect of the remark on the claimant was justified and valid considering the circumstances;

The tribunal found that the claimant’s perception was not over-sensitive and it was reasonable for her to find the remark racially offensive.

Based on the above points the tribunal agreed in favour of Dhaliwal.

In the case of Quality Solicitors CMHT vs Tunstall,

The EAT concluded that, on the basis of the facts provided, the single remark was not sufficient in satisfying the definition of harassment. Moreover, it was not objectively reasonable for it to breach the claimant’s dignity or create a forbidden environment. The EAT thought that the statement made was probably an introductory comment made to a client to encourage him to use the claimant’s services. The tribunal viewed the situation as “a sensitive woman who took things to heart”.

No, I do not agree with the EAT’s ruling in the case of Tunstall for the following reasons.

• The employment tribunal failed to address if the remark that was alleged had the effect of violating the dignity of the claimant or creating a proscribed environment for her, as it was addressed in the case of Richmond Pharmacology vs Dhaliwal.
• Moreover, the tribunal did not effectively address if there was a need to make a remark that highlighted the nationality of the claimant in front of the client.