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Friday, 22 February 2013

Harassment and His Holiness: Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701

It is as well that one Mr Heafield did not get a job in the timber yards where I worked over a couple of summers as a student. For the majority of the staff and customers the use of the “f word” was not so much bad language as a way of life. It was rare that they would manage a sentence without it, unless a female was present, in which case it would be watered down to every other sentence. I was always amused by the fact that sometimes they could use it in a sentence as a substitute for the noun, adjective and verb and yet convey their meaning perfectly.

Heafield instead worked as a casual sub-editor at the slightly more rarefied atmosphere of the Times Newspaper in London. He was there during the time of the Pope’s visit to the United Kingdom in 2010. On the evening of 12 March the newsdesk was preparing a story about allegations that the Pope had protected a paedophile priest. One of the editors in the newsroom, a Mr Wilson (no relation), shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?” When there was no response he repeated the question more loudly.

Heafield, a Roman Catholic, took offence at this. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the employment tribunal for harassment and victimisation on the ground of his religious belief.

The definition of harassment at the time was contained in reg 5 of the Employment Equality (Religion or Belief) Regulations 2003 (since replaced by the Equality Act 2010). Regulation 5 provided:

“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -

(a) violating B’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

The tribunal adopted the same approach as had been followed under the Race Relations Act 1976 by the Employment Appeal Tribunal in Richmond Pharmaceuticals v Dhaliwal [2009] ICR 724:

“As a matter of formal analysis it is not difficult to break down the necessary elements of liability under section 3A. They can be expressed as three-fold:

(1) The unwanted conduct: Did the Respondent engage in unwanted conduct;

(2) The purpose or effect of that conduct: Did the conduct in question either

(a) have the purpose or,

(b) have the effect

of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her. …

(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”

The tribunal went on to hold that Wilson’s bad language was merely an expression of bad temper which might have amounted to “unwanted conduct”, but was not intended to express hostility to the Pope or Roman Catholicism. Element (1) of the test in Richmond Pharmaceuticals had therefore been established but not elements (2) or (3). Wilson had not known that Heafield was Catholic and, more to the point, there had been no anti-Catholic purpose in what he said. His use of the f-word was simply a manifestation of his stress at the time.

By a fairly tortuous route, the details of which need not concern us here, the matter ended up before the Employment Appeal Tribunal.

The Appeal Tribunal held that the employment tribunal had been plainly right in finding that, to the extent that Heathfield felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction. At para [10] of its judgment it stated:

What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.

The Appeal Tribunal went on to say that the facts of the present case were a good illustration of the kind of case in which the imposition of legal liabilities was undesirable and outside the scope of the legislation.

Element (2) had therefore not been satisfied and accordingly the appeal would fail without needing to consider element (3).

The case seems to me to be a victory for common sense. Far too often in different contexts courts have had to consider claims for compensation on the ground that someone has been “offended” without any more tangible loss or damage than that. One can no doubt conceive of situations in which such offence or hostility is generated that it amounts to harassment or an impossible working environment, but Heathfield’s case as presented to the employment tribunal came nowhere near.

Legend has it that during the infamous “Bodyline” cricket series between Australia and England in the early 1930s the England captain, Douglas Jardine, went to the Australian dressing room after a day’s play to complain that he had been called a “bastard” by one of the Australian team. He demanded an apology. The Australian captain turned around and shouted across the room “Alright, which one of you bastards called this bastard a bastard?”

History has not been enormously kind to Jardine, who is generally remembered as a pompous sort whose actions on and off the pitch were rarely to be admired. Mr Heafield should take note.

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