Tees Esk and Wear Valleys NHS Foundation Trust v Aslam & Anor

For harassment under section 26(1) of the Equality Act 2010, unwanted conduct must be related to the relevant protected characteristic and must also have the prescribed purpose or effect. The relationship requirement is separate from the assessment of the claimant’s perception and the reasonableness of the conduct’s effect.

“Related to” is broader than “because of”, and proof of the actor’s motivation is not essential. Nevertheless, the tribunal must identify, clearly and on evidence, the factual features that establish the required relationship. A claimant’s perception cannot itself establish it. Conduct which is offensive or inappropriate, but is not related to the pleaded characteristic, falls outside section 26.

The claimant, a British Asian Indian nurse, succeeded before the Employment Tribunal in a complaint of racial harassment. A colleague had made an inappropriate remark to a group, including a reference to ISIS. The Tribunal found that the remark had created a hostile and offensive environment for the claimant and awarded £1,500 for injury to feelings.

The employer appealed against that finding and the associated award. The claimant was debarred from participating in the appeal and the second respondent did not resist it. The central issue was whether the Tribunal had lawfully found that the remark was conduct related to the claimant’s race for the purposes of section 26 of the Equality Act 2010.

1. Appeal allowed. The Employment Tribunal’s decision upholding the racial-harassment complaint and its associated compensation award were quashed. The complaint was dismissed and was not remitted.

2. Section 26(1) of the Equality Act 2010 contains distinct requirements. The conduct must be unwanted, related to the relevant protected characteristic, and have the prescribed purpose or effect. The assessment under section 26(4) of the claimant’s perception, the other circumstances and reasonableness concerns the effect requirement. It does not determine whether the conduct was related to race.

3. The expression related to is broader than the causal expression because of. A finding about the speaker’s motivation is not the only route to establishing the connection. However, the tribunal must identify factual features, supported by evidence and its findings, which establish that the conduct related to the particular characteristic alleged. The claimant’s own perception of such a relationship is not decisive.

4. The Tribunal made no clear finding that the remark related to British Asian Indian race. Its apparent reliance on an asserted public perception that ISIS was connected with Asian people lacked an evidential basis, was not suitable for judicial notice, and had not been canvassed so that the employer could address it. In any event, the Tribunal had to determine the relationship for itself rather than rely on an assumed public perception.

5. On the evidence and facts found, a properly directed tribunal could not have concluded that the remark was related to race in the manner pleaded. Applying Jafri v Lincoln College, remittal was unnecessary.

• Employment Appeal Tribunal: appeal allowed; the finding of racial harassment and the £1,500 injury-to-feelings award were quashed.
• Employment Tribunal: in a reserved decision sent on 18 October 2018, dismissed all claims except the racial-harassment complaint and awarded £1,500 for injury to feelings.