Quality Solicitors CMHT v Tunstall

For harassment based on the effect of unwanted conduct, an Employment Tribunal must decide whether the conduct actually violated dignity or created the statutory proscribed environment. It must also apply the objective safeguard in section 26(4) of the Equality Act 2010, including whether it was reasonable for the conduct to have that effect.

The statutory language prevents minor or transitory upsets, including an isolated remark, from automatically amounting to harassment. A single incident may suffice in an appropriate case, but its context and enduring effect require careful assessment.

The claimant, a Polish paralegal assistant, brought wide-ranging race and religion discrimination claims after her short employment ended. The Birmingham Employment Tribunal dismissed most claims but upheld one claim of race harassment.

The upheld claim concerned an overheard introduction to a client. The employer's representative accepted saying that the claimant was Polish and very nice, while the claimant alleged he said she was Polish but very nice. The Tribunal held that the difference did not matter and found the isolated remark humiliating.

The employer appealed the harassment finding. The central issue was whether the Tribunal had properly applied the statutory definition of harassment, particularly the requirement for a proscribed effect and the objective assessment required by section 26(4) of the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal's finding of race harassment, and the consequential remedy, were set aside. Applying the correct legal test, only one result was reasonably possible: the single introductory remark could not violate the claimant's dignity or create the proscribed environment.

2. An effect-based harassment claim requires more than a finding that the claimant felt humiliated. The Tribunal had to determine directly whether the conduct had the effect specified by section 26(1)(b) of the Equality Act 2010. Those statutory words are an important control against legal liability for trivial or transitory conduct. The Tribunal did not make that assessment.

3. The Tribunal also failed to reason through section 26(4). It had to consider the claimant's perception, all other circumstances and whether it was reasonable for the conduct to have the alleged effect. Its bare conclusion that it was reasonable for the claimant to feel humiliated did not answer the statutory question.

4. A single act can in principle create the proscribed environment. Its significance, context, frequency and continuing effect must nevertheless be assessed. Here the remark was an isolated introduction to a client, intended to encourage use of the claimant's services. Whether the word used was “and” or “but”, it was incapable of satisfying the statutory definition.

5. The EAT, though confined to questions of law under section 21(1) of the Employment Tribunals Act 1996, could finally dispose of the matter because remittal could produce only that result. The earlier conclusion was perverse in the legal sense because the Tribunal had not directed itself to the statutory definition.

• Employment Appeal Tribunal: Allowed the employer's appeal and set aside the Employment Tribunal's finding of race harassment.
• Employment Tribunal, Birmingham: In a judgment dated 25 October 2013, dismissed most claims but upheld the claimant's allegation of race harassment arising from one overheard remark.