Richmond Pharmacology v Dhaliwal EAT/0458/08

race discrimination | racial harassment

The Employment Appeal Tribunal (EAT) has held that a remark by a director to a female manager that she might be "married off in India" constituted harassment within the meaning of s.3A of the Race Relations Act 1976.

Harassment is defined by s.3A of the Race Relations Act 1976 as being where, on grounds of race or ethnic or national origins, a person engages in unwanted conduct that has the purpose or effect of violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Miss Dhaliwal, who is of Indian origin, was a project manager at Richmond Pharmacology. She handed in her resignation in August 2007, giving one month's notice in accordance with her contract of employment, although she had previously informally agreed that she would give at least two months' notice. Given her senior position, this caused practical difficulties for the medical director Dr Lorch, who also perceived that the quality of her work had begun to fall off. A meeting about her performance was held between Miss Dhaliwal and Dr Lorch, at which he is alleged to have said “We will probably bump into each other in future, unless you are married off in India”. An employment tribunal, commenting that this had been a single ill-judged comment rather than one intended to cause offence, found that Miss Dhaliwal had been harassed and awarded her £1,000 for injury to feelings.

The EAT agreed with the tribunal's ruling, acknowledging that the size of its award indicated that this was a borderline case. In doing so, it set out the following guidance on racial harassment:

• Case law prior to the implementation of the Race Directive in 2003, which introduced harassment as a free-standing form of discrimination under the Race Relations Act 1976 from 19 July 2003, is unlikely to be helpful. The provisions of the Protection from Harassment Act 1997 and associated case law are even less helpful in determining matters under the Race Relations Act 1976.
• A respondent may be held liable on the basis that the effect of the conduct has been to produce the proscribed consequences even if that was not his or her purpose and, although likely to be rare, a respondent may be liable if he or she acted for the purposes of producing the proscribed consequences but did not in fact do so (or in any event has not been shown to have done so).
• A respondent should not be held liable merely because the conduct has had the effect of producing a proscribed consequence. It should be reasonable that the consequence has occurred. Therefore, if a tribunal believes that a claimant was unreasonably prone to take offence even if he or she did genuinely feel his or her dignity to have been violated, there will have been no harassment.
• The inquiry into the reason why the perpetrator acted in the way that he or she did is logically distinct from any issue that may arise for the purpose of deciding whether he or she intended to produce the proscribed consequences. A perpetrator may intend to violate a claimant’s dignity for reasons other than her race (or indeed any of the other reasons proscribed by the discrimination legislation).
• Although establishing the reason why a respondent in a discrimination case acted in the way complained of typically involves an examination of the “mental processes” of the decision-taker, that is not always so. In some cases, the “ground” of the action complained of is inherently racial.

Case transcript of Richmond Pharmacology v Dhaliwal (Microsoft Word format, 91.5K) (on the EAT website)

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