Question: “Can anyone tell me what’s happened to the f***ing Pope?” is shouted twice across a busy newspaper editorial office by an undoubtedly stressed editor trying to hurry a story up about the Pope, at the time of his 2010 visit to the UK. The story, in the vernacular of the paper, is referred to as “The Pope”.
A Roman Catholic sub-editor working in the same room is upset and offended by this comment, but does it amount to harassment and victimisation on the grounds of his religious belief?
Answer: According to Mr Justice Underhill in the recent Employment Appeal Tribunal (EAT) case of Heafield v Times Newspaper Limited, Mr Heafield’s reaction was not reasonable, and the comments were evidently not ill-intentioned, anti-Catholic or directed at the Pope or Catholics.
The EAT Judge went on to say that in a perfect world, the editor should not have used an expletive in this circumstance, but people are not perfect and sometimes use bad language thoughtlessly. He considered that a reasonable person would have understood and made allowances for this.
The Employment Tribunal accepted back in early 2012 that the editor’s comment was, in Mr Heafield’s eyes, “unwanted conduct”. However they also concluded that this conduct had neither the purpose nor effect of violating Mr Heafield’s dignity, or creating an adverse environment for him.
On appeal, the EAT concluded the Tribunal’s decision was “unarguably right” and therefore dismissed the appeal. The EAT confirmed that although Mr Heafield had been upset, they found that, objectively, it wasn't reasonable for the comment to have had the effect of “violating his dignity” or creating a “hostile or offensive environment”.
In dealing with any complaints regarding offensive language and comments, employers should bear in mind that context is a very relevant consideration when assessing such issues. It’s always important to remember that there is an objective element to the test for harassment contrary to the Equality Act 2010.
Unless there is evidence that the words complained of created an intimidating or hostile environment then a harassment claim will fail. Here, the EAT said, the Tribunal was entitled to find that there was not such an atmosphere created by the words and the language used, although undoubtedly of industrial strength, did not amount to harassment.
Martin Pratt, Lester Aldridge LLP
