A one-off remark about a Polish accent did not amount to harassment

A recent Employment Appeal Tribunal (EAT) held in London concluded that a single comment about the Polish origins of a claimant – specifically “She is Polish, but (and) very nice” – did not constitute unlawful harassment of the claimant because of her race, overturning an earlier Employment Tribunal decision.

The original Employment Tribunal (ET) was held in Birmingham in October 2013. At the ET, the presiding Employment Judge, Judge Batten heard claims from Mrs Bozena Tunstall (the Claimant) against her former employers Quality Solicitors (the Respondent).

Mrs Tunstall, born in Poland but a resident of the UK for more than 20 years, is a law graduate who has worked as a lecturer and as a CAB adviser on a voluntary basis. She applied for a role with Quality Solicitors in April 2012, and although initially she was given a role as a paralegal assistant, her contract was terminated after less than two months due to what were described to the ET as “numerous and serious performance issues”.

The ET did review examples of her work and find that these concerns were legitimate – however, they also found the Respondent at fault for failing to identify at interview that the Claimant was unlikely to have the necessary skills for the role.

The Respondent’s handling of support for her employment was also criticised.

The proceedings were originally brought by the Claimant as an allegation of unlawful discrimination on the grounds of race and religion. The specific detail of the incident provide by the claimant was that, around a week before her dismissal she:

“overheard being spoken about by HS to the client ‘She is Polish but very nice’. The word “but” implicated “Polish” is not very nice usually.” In her witness statement the Claimant said “I have overheard HS speaking about me to the client I never met. ‘My paralegal assistant, Ros, will look after this from now on. She is Polish but very nice.'”

The original ET set out the applicable law, referring to the definition of harassment in section 26 of the Equality Act 2010 along with a number of previous cases including Richmond Pharmacology v Dhaliwal [2009] IRLR 336.

Ultimately, the tribunal found that:

“It was unnecessary to refer to the claimant as Polish to a third party, by way of introduction. The fact of the claimant’s race should have been irrelevant to the introduction and its inclusion suggested that it was used to patronise the claimant and to allude to some shortcoming perceived by Mr Shelley in light of the respondent’s concerns about the claimant’s performance which staff was reporting on regularly. It was clear to the Tribunal that the comment had the effect that the claimant felt humiliated and degraded – the comment was directly about her and made within her hearing. Whilst this was an isolated incident, the Tribunal considered that it amounted to an act of unlawful harassment of the claimant because of her race.”

and in their final closing summary

“It was clear to the Tribunal that this comment, heard by the claimant, was unwanted conduct which had the effect that she reasonably felt humiliated; as such it constituted unlawful harassment of the claimant because of her race.”

Mr Sean O’Brien, acting on behalf of the Respondent submitted that the original ET had erred in a number of ways, namely:

– it made no express finding that the comment in question had the purpose or effect of violating the Respondent’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her
– the Employment Tribunal did not sufficiently deal with section 26(4), which required it to take into account whether it was reasonable for the conduct to have the effect in question and the other circumstances of the case
– that the remark, whether it was in the form suggested by the Claimant or the form suggested by the Respondent, was not capable of satisfying the harassment test and the appeal should therefore be allowed

The EAT carefully considered Mr O’Brien’s submissions, considering three recent desicions (Dhaliwal, Grant & Weeks) in their deliberations. Their conclusion was that:

“this single remark was not capable of satisfying the definition of harassment. It follows also that we accept Mr O’Brien’s submission that the decision of the Employment Tribunal was, in the true legal sense, perverse – but this was, we think, because it did not direct its mind to the statutory definition.”

Full details of the findings can be found here: http://www.employmentappeals.gov.uk/Public/Up
load/14_0105fhwwATRN.doc

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.