Racial Harassment - Ill Judged Remarks

In Richmond Pharmacology v Dhaliwal, the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that a remark made by a senior manager to a female employee of Indian ethnic origin, referring to the probability that after the employee had left the company they would 'bump into each other in future, unless you are married off in India', violated her dignity and constituted unlawful harassment within the meaning of Section 3A of the Race Relations Act 1976 (RRA).

Miss Dhaliwal had worked for Richmond Pharmacology for five years and held a senior position as a Project Manager. Until she resigned, giving one month's notice, she had a good working relationship with her managers. However, an agreement had been reached some time previously that Miss Dhaliwal would give two months' notice if she wished to leave, but the agreement had never been formally incorporated into her contract.

Given her senior position, Miss Dhaliwal's resignation caused the company real problems, which put a strain on her relationship with Dr Ulrike Lorch, the Medical Director of the company. Against that background, a short meeting took place between the two, at which Dr Lorch said that Miss Dhaliwal's work had deteriorated and that she should make sure that she worked out her notice in a professional way. It was in that context that the remark about them seeing each other in future was made.

Miss Dhaliwal was upset by the remark and brought proceedings in the ET, which found in her favour and awarded her compensation of £1,000 for injury to feelings. Richmond Pharmacology appealed to the EAT.

The EAT noted that Dr Lorch's reference to a marriage in India did not come out of the blue. Miss Dhaliwal had, on more than one occasion, referred to the possibility of getting married and giving up work and had said that her parents wanted to see her married. She had also recently told Dr Lorch that she would shortly be visiting India. The ET had found that whilst Dr Lorch's remark was not intended to violate Miss Dhaliwal's dignity, this was its effect and her words therefore constituted unwanted conduct under the RRA.

In the EAT's view, the ET was entitled to find that Dr Lorch's remark constituted harassment within the RRA. The phrase 'married off' evoked the stereotype of forced marriage and could reasonably be perceived as a violation of Miss Dhaliwal's dignity. The EAT accepted, however, that the facts may have been 'close to the borderline', as was indicated by the size of the compensation award.

In handing down its judgment, the EAT clarified the elements the ET should consider when determining the facts in claims of this kind. There are two alternative bases of liability - 'purpose' and 'effect'. A respondent may be held liable on the basis that the effect of his conduct was to produce the proscribed consequences, even if that was not his purpose. Conversely, the respondent may be liable if he acted for the purpose of producing the proscribed consequences but did not in fact do so. However, a respondent should not be held liable just because their conduct had the effect of producing the proscribed consequence. It should be reasonable that the consequence occurred and this is an objective standard. The ET must consider whether or not it was reasonable for a claimant to feel that their dignity had been violated or an adverse environment created. Where the action complained of is inherently racial, however, it will not be necessary for the ET to examine the 'mental processes' of the perpetrator.

Aston Bond says, "Employers can be liable for the discriminatory acts of their employees and it is important to ensure that workplace policies are up-to-date and communicated to staff. As this case demonstrates, an ill-judged remark can have serious consequences."

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