Harassment can occur even where the purpose of the conduct was not to harass

It is crucially important that employers are aware of the ‘reach’ of rules on harassment in the UK. A recent Employment Appeal Tribunal decision serves as a reminder that conduct can constitute harassment under Equality Act 2010 even where the perpetrators did not intend to harass. 

The legal test for harassment requires the conduct to ‘relate to’ a protected characteristic. It also covers cases where the purpose of the conduct was to harass and where, regardless of intent, it had a harassing effect. When considering whether conduct had a harassing effect, tribunals must take account of the following:

• The employee’s perception;
• The other circumstances of the case; and
• Whether it is reasonable for the conduct to have that effect.

In Logo v Payone and others, Mr Logo brought several claims of racial harassment. They included:

• That a colleague attended a work party wearing blackface makeup.
• That a colleague told Mr Logo they’d heard a rude joke involving a black man and an animal.
• That a video advert for “Pure Blonde” beer – depicting a world of white, blonde people – was shared on a team WhatsApp group where he was the only black member.

The tribunal found that the first two incidents had occurred and amounted to racial harassment because of their ‘effect’ on Mr Logo. It held that the sharing of an advert for “Pure Blonde” beer on WhatsApp did not ‘relate’ to the protected characteristic of race and that it was not reasonable, in any event, for the conduct to have had a harassing effect on Mr Logo. 

The Employment Appeal Tribunal disagreed, holding that the tribunal had been wrong to conclude that the circulation of a video “that depicts a utopia of white, blond people who are ‘pure’” did not ‘relate to’ race. When looking at the ‘effect’ of the video the tribunal had also failed to consider:

• The perception of Mr Logo – focussing instead on the fact that the person posting it thought it was funny.
• The circumstances of the case – including that the video was posted without explanation in a group of which Mr Logo was the only black member. 

Harassment training should clearly explain to employees that something which they regard as harmless ‘banter’ can still be unlawful harassment if it has a harassing effect on a colleague. Clear parameters of appropriate workplace conduct should be set, and employees should be reminded to ‘think before they post’ in any interactions on social media.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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