One-off comments can be 'harassment'

Andrew West, employment partner at Gotelee & Goldsmith, highlights how important it is for managers to be aware of diversity legislation

Andrew West, employment partner at Gotelee & Goldsmith, highlights how important it is for managers to be aware of diversity legislation

IN discrimination cases, individuals claiming that they have been unlawfully harassed have to show that they have been subjected to behaviour which was unwanted and which had the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

For behaviour to be unwanted, this suggests that the individual must have made it known that it is offensive or unacceptable. For this reason, can a one-off comment amount to unlawful harassment?

There have been a number of cases over the years that have confirmed that a solitary comment can amount to harassment. In cases like this, the nature of the comment was clearly so serious that any person would know that it was unacceptable.

The case of Richmond Pharmacology v Dhaliwal reinforced the principle that a one-off comment can amount to unlawful harassment. Ms Dhaliwal resigned, giving one month's notice, instead of the two that had been verbally agreed with Richmond Pharmacology when she started work for them.

This caused difficulties, as she held a senior position and her employer was very small. There were other disagreements with her line manager during her notice period, in relation to her holiday pay entitlement and whether she had to come into work during a tube strike. She and her manager had always got on well before.

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During the course of one conversation, her line manager said to Ms Dhaliwal that “we will probably bump into each other in the future, unless you are married off in India”. She successfully claimed that she had been unlawfully harassed and on appeal, it was decided that she had been as the comment was offensive to her and violated her dignity.

The appeal court felt that it was a borderline case (she was awarded �1,000 for injury to feelings) but also laid down a marker that harassment must not be found too readily or to encourage a culture of hypersensitivity. It was felt that the comment had not intended to be hurtful. If it had been, the award of compensation would have reflected this.

This case reinforces how important it is for employers to train their staff on equal opportunities and diversity, to avoid claims of compensation where inadvertant comments result in an employee claiming that they have been unlawfully discriminated against.

Training of staff can help an employer utilise the statutory defence - and avoid liability - by showing that all reasonably practicable steps had been taken to prevent discrimination from occurring in the workplace.

Now that injury to feelings awards in discrimination cases can range from �500 to �30,000 for the upset caused to the individual, the cost of training is a comparative drop in the ocean.