Heafield v Times Newspaper Ltd (Religion or Belief Discrimination)

For religious-harassment claims, unwanted conduct must have the purpose or effect of violating dignity or creating an adverse environment, and must be on the grounds of religion or belief. Where effect is alleged, the claimant’s perception is relevant but the alleged effect must also be one which it is reasonable to regard as having occurred.

The context and evident purpose of a remark are relevant to that objective assessment. An unintended, thoughtless expletive used in an enquiry made under pressure will not ordinarily amount to unlawful harassment merely because it causes offence. The law does not impose liability for every unfortunate or insensitive phrase.

A Roman Catholic casual sub-editor complained after an editor, seeking a delayed article about the Pope, used an expletive in referring to the Pope. He brought Employment Tribunal claims for religious harassment and victimisation.

The Employment Tribunal dismissed both claims in a judgment sent on 4 July 2012. The claimant appealed only the dismissal of harassment. Following a sift dismissal by HHJ Hand QC, he exercised his right to a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993.

The issue was whether the Tribunal had erred in finding that the remark neither had the proscribed purpose or effect required for harassment nor was made on the grounds of the claimant’s religion.

1. Application dismissed; appeal dismissed. The Employment Tribunal was unarguably entitled to find that the editor’s remark did not have the purpose or effect required by regulation 5 of the Employment Equality (Religion or Belief) Regulations 2003.

2. The editor’s purpose was not anti-Catholic. He did not know of the claimant’s religion and used bad language because he was irritated and under pressure to obtain the article. That finding was unchallenged.

3. Although the claimant was upset, it was not reasonable to regard his dignity as violated or an adverse environment as created. The remark was plainly not directed at the Pope, Catholics, or Catholicism. A reasonable person would recognise its thoughtless and non-hostile context and make allowance for it. Regulation 5 does not create liability for every unintended, unfortunate phrase.

4. The Tribunal did not treat the editor’s purpose as determinative of effect. It permissibly treated the context and evident purpose of the remark as relevant to whether the claimant’s reaction was reasonable. That approach accorded with Richmond Pharmacology v Dhaliwal [2009] ICR 724 and Land Registry v Grant [2011] ICR 1390.

5. The Tribunal’s shorthand reference to conduct “insulting a religion” was inaccurate as a general description of religious harassment, since harassment can occur without such an insult. It caused no material misdirection on these facts.

6. Since the absence of the required purpose or effect disposed of the claim, it was unnecessary to determine whether the conduct was on grounds of religion. The court observed that motivation may sometimes establish the protected ground, but the inherent character of conduct may sometimes do so without inquiry into the actor’s mental processes.

• Employment Appeal Tribunal: Rule 3(10) application dismissed. The appeal against dismissal of the harassment claim remained dismissed.
• Employment Tribunal: On 4 July 2012, dismissed claims for religious harassment and victimisation.