Jagbir Sidhu v Our Place Schools Limited

Under section 26 of the Equality Act 2010, harassment requires unwanted conduct related to a protected characteristic which has the proscribed purpose or effect. Whether conduct has the requisite effect requires consideration of the claimant’s perception, all the circumstances, and the reasonableness of that effect.

A tribunal does not err merely because one aspect of its reasoning about a gesture or phrase is incomplete, where its unchallenged findings independently establish absence of the requisite purpose and effect. Context, lack of targeting, the speaker’s knowledge, the claimant’s response, and absence of repetition may all be relevant. Findings of fact of this kind can ordinarily be challenged only for perversity.

The claimant appealed against an Employment Tribunal sitting at Birmingham, which on 5 May 2020 rejected claims of race and/or religion or belief discrimination.

Permission was granted only in relation to two allegations of harassment contrary to section 26 of the Equality Act 2010. The first concerned a colleague’s hand gesture during a discussion of historic persecution of Sikhs. The second concerned a colleague’s use of the expression “coloured people” in discussing the number of people of colour in Herefordshire.

The appeal questioned whether the tribunal had applied the statutory definition correctly when determining the purpose and effect of the conduct.

1. Appeal dismissed. The tribunal had correctly directed itself on section 26 of the Equality Act 2010, including that a serious one-off incident may amount to harassment and that effect depends upon the claimant’s perception, the surrounding circumstances, and reasonableness.

2. On the first allegation, the tribunal accepted in principle that a hand gesture illustrating a historic barbaric execution of members of a racial or religious group could cause revulsion or distress and could amount to unwanted conduct. Its references to whether sawing gestures were generally offensive to Sikhs were therefore not a complete answer to the claim. However, that possible incompleteness did not invalidate the separate findings that the colleague lacked the prohibited purpose, that the claimant had not been highly offended, and that the alleged effect would not reasonably have arisen in the amicable, untargeted and isolated context. Those factual conclusions were not challenged as perverse.

3. On the second allegation, the tribunal was entitled to treat the pleaded complaint as directed principally to the phrase used. In any event, considering the whole comment would not have affected its conclusions. The colleague’s lack of knowledge that the phrase was derogatory, the absence of targeting, the claimant’s lack of contemporaneous complaint or visible discomfort, and the isolated amicable context were relevant to purpose, actual effect and reasonable effect.

4. The tribunal’s statement that an assertion was not evidence, read in context, concerned the absence of supporting evidence. Its conclusions did not reject the claimant’s evidence merely because it lacked corroboration, but rested on findings that he was not credible.

• Employment Appeal Tribunal: Appeal dismissed: [2023] EAT 70.
• Employment Tribunal, Birmingham: On 5 May 2020, dismissed the claimant’s race and/or religion or belief discrimination claims. No citation was stated.