Kenbata v Westminster City Council (Harassment)

In deciding whether unwanted race-related conduct had the prohibited effect under section 26 of the Equality Act 2010, an Employment Tribunal must apply the statutory assessment of the claimant’s perception, all other circumstances and objective reasonableness. It must not take account of a finding which was impermissible in the proceedings.

Where the employer had conceded that a race complaint was a protected act and had not contended that it lacked genuineness, the Tribunal could not rely on its own finding that the complaint was not genuine when dismissing the related harassment complaint. A direct discrimination allegation raises distinct questions and requires separate adjudication.

The claimant, a Black British African contractor, brought combined complaints against the Council. They included allegations arising from an open-plan discussion of his complaint that an overgrown office plant amounted to racial segregation.

The London (Central) Employment Tribunal dismissed all but one claim. It found that the open discussion was victimisation, but dismissed the associated harassment and direct discrimination allegations. It awarded the respondent costs.

The claimant appealed. The central issues were whether the Tribunal could rely on its finding that the original complaint was not genuine when assessing harassment, and whether it had determined the direct discrimination allegation.

1. Appeal allowed in part. The harassment claim and the direct discrimination claim under issue 4.11 were remitted to the same Employment Tribunal.

2. Harassment under section 26 of the Equality Act 2010 required separate consideration from victimisation. The Tribunal had correctly found that Mr Low did not intend to harass the claimant in holding the open-plan discussion. Its reasons on intention, and generally on the alternative question of effect, were adequate.

3. However, in deciding whether the conduct had the prohibited effect, the Tribunal had treated the claimant’s original complaint as not genuine. That was impermissible. The respondent had conceded that the complaint was a protected act, had not advanced lack of genuineness below, and had not cross-examined the claimant on it. The finding was inconsistent with the concession and was a factor which should not have been taken into account.

4. The statutory effect assessment required consideration of the claimant’s perception, the other circumstances and whether it was reasonable for the conduct to have that effect. The approach in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 confirmed that the reasonableness factor was objective and that application of the assessment was essentially factual.

5. The Tribunal had supplied no reasoning on the distinct direct discrimination allegation. It had to decide whether the claimant was treated less favourably than the named comparators and, if so, whether race was the reason. That claim required separate adjudication.

6. The remittal was a narrow submissions-only exercise before the original Tribunal. Costs and remedy could be reconsidered if either remitted claim succeeded. The claimant was awarded £1,200 of his appeal fees.

• Employment Appeal Tribunal: Appeal allowed in part. The harassment and direct discrimination issues were remitted to the original Tribunal.
• London (Central) Employment Tribunal: Judgment dated 30 June 2015 dismissed all claims save one victimisation claim and ordered the claimant to pay £10,000 costs. Written reasons were provided on 8 January 2016.