Exec Catering Ltd (t/a Kaffeccinos Coffee House) & Anor v Kaczynska

For harassment under section 26 of the Equality Act 2010, unwanted conduct may be unlawful because it had the prohibited effect, even where the respondent did not intend that effect. The tribunal must assess the claimant’s subjective reaction and whether that reaction was reasonable. Lack of intention, and the fact that conduct was not directed at the claimant, may be relevant but are not conclusive.

Where limitation is in issue, a tribunal must decide whether the incidents amount to a continuing state of affairs, when it ended, and, if necessary, whether it is just and equitable to extend time. It must address that issue separately for each harassment complaint.

The claimant, a Polish café worker, brought claims of constructive unfair dismissal and racial and sexual harassment against her employer and its operator. The Employment Tribunal upheld racial harassment based on an instruction not to speak Polish with other staff. It rejected sexual harassment as out of time, although it had found incidents involving sexual remarks and pornography viewed in the workplace.

The respondents appealed on the ground that the Tribunal had not addressed limitation in relation to racial harassment. The claimant cross-appealed, contending that the Tribunal had misdirected itself on sexual harassment by treating the absence of an intention that staff see pornography as determinative. The central issues were whether each complaint involved a continuing state of affairs and whether the sexual-harassment test had been correctly applied.

1. The appeal and cross-appeal were allowed. Both harassment claims were remitted to the same Employment Tribunal for reconsideration on the existing evidence.

2. On sexual harassment, the Tribunal misdirected itself by treating Mr Croney’s lack of intention that staff should see pornography as an answer to the complaint. Under section 26 of the Equality Act 2010, conduct may have the prohibited effect although that was not its purpose. The Tribunal had to decide whether the claimant was subjectively offended and whether that was a reasonable reaction. The absence of intention, and whether conduct was directed at her, were relevant considerations only.

3. The Tribunal was required to apply the structured approach in Richmond Pharmacology v Dhaliwal [2009] IRLR 337: unwanted conduct; the purpose or effect of violating dignity or creating the prescribed environment; and conduct on the ground of sex. It had to decide whether the pornography, together with the earlier incidents, created a sexualised working environment and a continuing state of affairs. If so, it had to determine when that state of affairs ended for limitation purposes.

4. On racial harassment, limitation had been raised but the Tribunal had made no finding on it. The Appeal Tribunal could not infer from the finding of a ban on speaking Polish that the Tribunal had found a continuing act. The Tribunal had to decide whether the ban continued after the other Polish-speaking employees left, whether any continuing act lasted until resignation, and, if it ended outside the primary period, whether it was just and equitable to extend time under section 123 of the Equality Act 2010.

5. The Appeal Tribunal declined to substitute findings that either claim was necessarily in time or necessarily established. No further evidence was required on liability.

• Employment Appeal Tribunal: the respondents’ appeal and the claimant’s cross-appeal were allowed in [2014] UKEAT 0182_13_3101. The racial- and sexual-harassment claims were remitted to the same Tribunal.
• Employment Tribunal (Newcastle): in reasons promulgated on 21 May 2012, the Tribunal upheld constructive unfair dismissal and racial harassment, and dismissed sexual harassment as statute-barred.