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Remark that employee is ‘Polish but very nice’ did not amount to racial harassment

Posted by TonyBrownEmploymentSolicitor on September 29, 2014

Is referring to an employee as ‘Polish but very nice' (or even ‘Polish and very nice’) unlawful harassment of that employee because of her race?

Not on the facts of the following case.

The Claimant in that case was Polish and worked as a paralegal for a firm of solicitors. She overheard a colleague describing her to a client as 'She is Polish but very nice’ (the colleague’s evidence was that he actually said ‘She is Polish and very nice’).

The Claimant made a claim to the Employment Tribunal alleging that the overheard remark by her colleague to a client that the Claimant ‘is Polish but very nice’ amounted to harassment because of her Polish race.

The colleague accepted that he had on one occasion told a client that the Claimant was 'Polish and very nice' but disputed that he had said that she was 'Polish but very nice'.

Upholding the claim of harassment, the ET considered that it did not matter whether the word 'but' or 'and' was used because it was unnecessary to refer to the Claimant as Polish to the client. The fact of the Claimant's race should have been irrelevant and its inclusion suggested that it was used to patronise the Claimant and to allude to some shortcoming on her part. It was clear to the tribunal that this comment, heard by the Claimant, was unwanted conduct which had the effect that she reasonably felt humiliated; as such it constituted unlawful harassment of the Claimant because of her race.

The EAT allowed the employer’s appeal against the finding of racial harassment.

The EAT ruled that, although the tribunal decided that the colleague’s remark had the effect of violating the Claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, the tribunal had not addressed whether the single remark could truly be said to have violated the Claimant's dignity or to have created the proscribed environment for her and if so why. Secondly, the tribunal did not provide any reasoning at all on the question whether it was reasonable for the remark to have the effect the Claimant complained about.

The EAT stated that, if the tribunal had applied the correct legal test, only one answer was reasonably possible. The single remark, whether it was in the terms suggested by the Claimant or those suggested by the employer, was not such as to violate her dignity or create the proscribed environment for her.

It does not matter if an individual treats a remark as intimidating, hostile, degrading etc if objectively it is not reasonable for the remark to have that effect. The inclusion of these limiting words in the definition of harassment are an important control to prevent trivial acts causing minor upset being caught by the concept of harassment.

In this case, the tribunal said only that it was not "necessary" for the employer to have referred to the Claimant’s nationality; it did not answer the question whether it was reasonable for the remark to have the effect on the Claimant which she claimed. In the EAT’s view this single remark was not capable of satisfying the definition of harassment.