Appeal No. UKEATPA/1305/12/BA

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

		At the Tribunal
		On 17 January 2013

Before
THE HONOURABLE MR JUSTICE UNDERHILL
(SITTING ALONE)

MR B HEAFIELD	APPELLANT

TIMES NEWSPAPER LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3 (10) APPLICATION - APPELLANT ONLY

	APPEARANCES

For the Appellant	MR MICHAEL REED
(Legal Officer)
Free Representation Unit	

SUMMARY
RELIGION OR BELIEF DISCRIMINATION

The Appellant, a sub-editor, who was a Roman Catholic, was offended by an editor referring to “the fucking Pope” when chasing a delayed article and brought a claim for harassment on the grounds of religious belief.  The Tribunal held that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
Held:  The Tribunal’s decision was unarguably correct – Richmond Pharmacology v Dhaliwal and Land Registry v Grant applied.

THE HONOURABLE MR JUSTICE UNDERHILL

1.	The Appellant in this case was a casual sub-editor on the Times newspaper.  He is a Roman Catholic.  He was working at the Times during the visit to the United Kingdom of the Pope in 2010.

2.	On the evening of 12 March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest.  There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, 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.  The Appellant was upset and offended what he heard.  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 grounds of his religious belief.

3.	The claim was heard by an Employment Tribunal sitting at the East London hearing centre, chaired by Employment Judge Jones, on 23 and 24 February 2012.  By a Judgment with written reasons sent to the parties on 4 July 2012 both claims were dismissed.  

4.	The Appellant has appealed against the dismissal of the harassment, but not the victimisation, claim.  The appeal has been dismissed on the sift by HHJ Hand QC.  The matter comes before me as a result of the Appellant having exercised his right to a hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended.)  He has been represented before me by Mr Michael Reed of the Free Representation Unit.  Mr Reed did not appear before the Tribunal, where the Appellant was represented by other counsel.  I am grateful to him for his clear and succinct submissions.

5.	The statutory definition of harassment was at the material time contained in regulation 5 of the Employment Equality (Religion or Belief) Regulations 2003, which reads as follows:

“(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.”

It is convenient to refer by way of shorthand to the welter of adjectives in paragraph (1) (b) as an “adverse” environment.  

6.	The Tribunal approached the case on the basis of the analysis of regulation 5 (or, strictly, its equivalent in the Race Relations Act 1976) in the judgment of this Tribunal, myself presiding, in Richmond Pharmaceuticals v Dhaliwal [2009] ICR 724. At paragraph 10 in the judgment in that case we said this:

“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.  (We will refer to (i) and (ii) as “the proscribed consequences”.) 
(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”

As to element (1), the Tribunal found that Mr Wilson had indeed engaged in “unwanted conduct” but it held that neither element (2) nor element (3) had been proved.  As regards element (2), the conduct in question had neither (a) the purpose nor (b) the effect of violating the Appellant’s dignity or creating an adverse environment for him.  As regards element (3), the Tribunal held that what Mr Wilson said was not “on the grounds of” the Appellant’s religion.

7.	Mr Reed challenges the Tribunal’s conclusion about both elements.  

8.	I begin with element (2).  That element can, as we pointed out in Dhaliwal, be satisfied in either of two ways; the conduct must have had either (a) the purpose or (b) the effect of producing the proscribed consequences.  I take them in turn.

9.	As to purpose, the Tribunal found that Mr Wilson did not know that the Appellant was a Roman Catholic; but, more generally and perhaps more pertinently, it found that there was, to put it shortly, no anti-Catholic purpose in what he said.  He simply wanted the article about the Pope and used bad language because he was irritated and under pressure.  That seems to me a wholly unsurprising finding, but anyway it is not challenged on this appeal.

10.	Turning to the effect of what Mr Wilson said, the Tribunal found at paragraph 88 of the reasons that the Appellant was upset by it; and it seems, arguably over-generously, to have treated that as meaning that he had suffered the proscribed consequences.  But it held that the case fell within the proviso in paragraph (2) of regulation 5 – in other words, that, to the extent that the Appellant felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction.  In my judgment that conclusion was plainly right.  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 Tribunal quoted the following passage from our judgment in Dhaliwal:

“ … [N]ot every racially slanted adverse comment or conduct may constitute the violation of a persons dignity.  Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.  While it is very important that employers and Tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct, or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred, it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

Those observations are as applicable to the question of reasonableness as to the question of whether a claimant’s dignity has in fact been violated in the first place.  The facts of the present case seem to me a good illustration of the kind of case in which the imposition of legal liabilities is undesirable and outside the scope of the legislation.

11.	Mr Reed submits that the Tribunal, in considering the question of reasonableness, inadmissibly introduced the question of Mr Wilson’s purpose.  He refers in particular to the concluding sentences of paragraph 89 of the reasons, where, having considered whether the Appellant might not have been over-sensitive because of his concerns about negative reporting in relation to the issue of covering up paedophilia among Catholic priests, it continued as follows:

“Even if that were not the case it is still our judgment that it would be unreasonable to consider a mere enquiry after a piece of work as insulting a religion.  This is so even if, as in this case, the enquiry is ratcheted up with an expletive or shouted across the room at those who are responsible for ensuring that the article is produced on time.”

What Mr Reed says is that the Tribunal’s reasoning in that passage was that because Mr Wilson had simply been making an enquiry, then as a matter of law his conduct could not or could not, reasonably, have produced the proscribed consequences.  

12.	If the Tribunal was indeed committing itself to a general proposition of that kind, I agree that it would have been wrong.  But in my judgment it is perfectly plain that it was not doing so.  It was simply saying that the context in which the phrase was used was relevant to its effect and, in the present case, was such that it was not reasonable for the Appellant to feel that his dignity had been violated or that he had been subjected to an adverse environment.  To have regard to the evident purpose of a remark in that way is entirely orthodox.  We made that point in Dhaliwal and it was confirmed by the Court of Appeal in Land Registry v Grant [2011] ICR 1390.  At paragraphs 12 to 13 (page 1394) Elias LJ said this:

“12. In Richmond Pharmocology v Dhaliwal [2009] ICR 724, Mr Justice Underhill President, giving the judgment of the EAT with respect to a similarly worded provision in the Race Relations Act 1976, held that in assessing whether the effect of the conduct, objectively viewed, fell within either of the two paragraphs: 
‘One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended that if it was evidently intended to hurt.’
13. Ms Monaghan submitted that this was erroneous because it confused purpose and effect. She says that the intention of the speaker can be relevant only where the purpose is in issue. I do not agree. When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.”

Mr Reed said that he did not in any way dispute the correctness of the proposition in those paragraphs – he was of course bound by it – but he said that his submission was different, the difference being that the Tribunal was treating Mr Wilson’s evident purpose not simply as relevant but as determinative.  As I have already said, I do not think that is a possible reading of the passage in question.  

13.	I should mention in passing, though this is not at the heart of Mr Reed’s submissions, that he also said that the phrase “insulting a religion” was an inaccurate way of describing the gist of an act of religious harassment: it is perfectly possible to commit such an act without “insulting a religion”.  He is correct about that, but it is clear that the Tribunal merely used the phrase as a convenient shorthand.  It did not involve any material misdirection in the circumstances in the present case.

14.	I therefore believe that the Tribunal was unarguably right to find that “element (2)” was not present on the facts of this case.  That means that I need not consider its decision as regards element (3), and I will confine myself to a few sentences about it.  In bare outline what Mr Reed says is that the Tribunal erred by considering Mr Wilson’s “motive” in saying what he did and that that was immaterial to the question of whether his remark was “on the grounds” of the Appellant’s religion.  I am far from sure that there was any error here either, but I accept that the position is rather less straightforward.  Sometimes an act complained of can only be shown to have been done on the proscribed ground by showing that the person doing it was motivated by the fact that the Claimant had the protected characteristic; see, most recently, Martin v Devonshires [2011] ICR 352.  But that is not always the case.  If the inherent character of the act in question means that the protected characteristic was the ground of the action complained of it will be unnecessary to consider the mental processes of the person in question at all.  As we observed in Dhaliwal, that may particularly often be the case in harassment cases: see paragraph 16 (pages 729 – 730).  But applying those general principles to the facts of the present case may not be entirely straightforward, and since I do not need to get into these rather murkier waters I prefer not to do so, particularly on an application of this character.

15.	I therefore dismiss this application with the result that the appeal itself stands dismissed in accordance with the order of HHJ Hand.