Noble v Sidhil Ltd & Anor (Harassment)

A claimant need not share a protected characteristic in order to be harassed because of it. An Employment Tribunal therefore errs if it rejects racial, religious or other harassment claims solely because the claimant does not possess the characteristic concerned.

Where numerous allegations depend on credibility, the Tribunal may decide each allegation separately. It must then consider the overall picture and give adequate reasons for material credibility findings. Under section 26 of the Equality Act 2010, knowledge of the claimant’s disability is not required for harassment.

The claimant had worked for the first respondent under the supervision of the second respondent. He brought numerous harassment complaints, principally concerning race, age, sexual orientation, religion or belief, and disability. The Employment Tribunal upheld eight of 56 allegations and rejected the remainder.

The claimant appealed against the rejected claims. He contended that the Tribunal had wrongly required him to share the protected characteristic, had adopted an unlawful approach to credibility and medical material, had failed to assess the overall picture, and had given inadequate reasons. The first respondent cross-appealed against an upheld disability-harassment finding, contending that it lacked knowledge of disability.

The central issues were whether those errors were material and whether knowledge was required for harassment.

1. Appeal allowed and cross-appeal dismissed. The Employment Tribunal’s decision was set aside to the extent necessary and the case was remitted for rehearing before a freshly constituted Tribunal.

2. The Tribunal erred in holding, in relation to comments concerning people who were not white British, that conduct was not unlawful because the claimant was white British. A person need not share the relevant protected characteristic to suffer harassment or discrimination because of it. The same error affected the Tribunal’s approach to anti-Semitic conduct, which could amount to harassment on grounds of race, religion or belief, or both.

3. The Tribunal was entitled to determine whether each alleged event occurred. However, after doing so it had to stand back, consider the overall picture and provide sufficient reasons. Those requirements were not met. The approach of one member to credibility, including the construction of a psychological profile from medical records, was legally flawed and materially affected the decision-making process.

4. Knowledge of disability is not a requirement for harassment under section 26 of the Equality Act 2010. The first respondent’s cross-appeal therefore failed. It also had some knowledge that the claimant had suffered stress.

5. The fresh Tribunal was directed to determine the rejected claims for which adequate reasons had not been given. Specified matters with satisfactory explanations, including the alleged “Sooty” comment and certain age-related remarks, did not require rehearing. Dr Ursell was not to sit on the new panel.

• Employment Appeal Tribunal: The claimant’s appeal was allowed and the first respondent’s cross-appeal was dismissed. The matter was remitted for rehearing before a freshly constituted Tribunal.
• Employment Tribunal, Leeds: Following hearings in November 2013, written reasons were issued on 25 June 2014 and a corrected judgment on 10 April 2015. Some harassment complaints succeeded and most were dismissed.