In late 2019, a complaint of age-related harassment was considered by the Bristol Employment Tribunal in Munro v Sampson Coward LLP. The employer, a law firm, had a practice within the firm of marking birthdays with birthday cards from colleagues. Many of us office-based workers will be all too familiar with this concept; trying to find imaginative ways to express best wishes while digging around in pockets for loose change for the collection.
It may surprise you to learn that not everyone welcomes such an uncontroversial gesture. The birthday card, which the tribunal concluded as being ‘an act of kindness’, was received quite differently in this case. The claimant received the card and related comments from her colleagues as distressing and heinous actions. She reportedly left the office early, too upset by the events to be able to concentrate.
It seems the topic of one’s age can be a delicate one.
The claimant applied to the tribunal to refer to her age as ‘X’ so as to save her from a further violation of her dignity. The tribunal refused.
Not to be misinterpreted as heartless, the tribunal accepted that the claimant was genuinely upset by the age-related comments, but found that it was unreasonable for the comments to have had that effect; an element necessary for a claim to be successful.
The legal test for harassment is as follows: ‘A person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the other’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person’.
Note that there is neither an obligation for the conduct to occur more than once, nor for any intention to cause the offence or humiliation. However, as in the case of Munro, it does need to be reasonable to have had the effect claimed, objectively speaking.
Munro’s claims therefore failed, but it gives rise to a broader question; for which other routine, workplace-related occurrences might an employer risk being hauled before an employment judge, defending themselves against harassment and discrimination allegations?
Well, more than you might think and some are subtle.
- Nicknames – naming the bearded accountant ‘Pirate Pete’ could constitute race or religious belief harassment;
- Comments – calling the young receptionist immature or childish could be age-related harassment;
- Onlinebehaviour – messaging a colleague on social media could mean committing sexual harassment;
- Conversation – speaking in Afrikaans around colleagues who speak only English could amount to race-related harassment.
The list goes on:
- Misuse of pronouns for trans individuals;
- Criticising someone’s spelling who suffers with dyslexia;
- Tweeting homophobic jokes;
- Hosting work drinks in a bar, thereby excluding those who don’t drink for religious reasons;
- Enforcing a strict uniform policy.
The Equality and Human Rights Commission has produced guidance for employers. They state that ‘no workplace is immune to harassment, and a lack of reported cases does not mean that people have not experienced it’.
Employers have a duty to take reasonable steps to prevent their workers from harassment and individual workers can be personally liable for acts of harassment as well.
The message to employers though is clear; investigate and address concerns raised with sincerity and impartiality, having consideration for the context. Even where an allegation of harassment appears objectively to be unreasonable or hyper-sensitive, employers disregard them at their peril.
Joe Nicholls is an employment partner at Wards Solicitors