Mr I Clay, Solicitor For the 1st v Respondent — 2021

The claimant brought a harassment claim related to race under s.26 Equality Act 2010 arising from a comments-book entry by Atlas employee Markham Pell describing three customers as '3 coloured guys'. The tribunal found Mr Pell used the word out of naivety and in a mistaken attempt to describe people he thought were Asian or South Asian, not with any intention to offend. It accepted the term was outdated and should not be used, but found the conduct was not done for the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

On the effect question, the tribunal accepted Mr Justin was upset and entitled to be aggrieved when he read the entry, but held his initial reaction did not meet the statutory threshold for harassment. Applying the objective element in s.26(4), and referring to Richmond Pharmacology v Dhaliwal and Grant v HM Land Registry & Another, it found the wider circumstances meant it was not reasonable for the original comments-book entry to have the proscribed effect. The tribunal then considered the brief exchange on 8 February 2020, but found Mr Pell was not making a principled denial that anything was wrong; he was struggling with why the wording was problematic. Even taking that later confrontation into account, the tribunal held it would not be reasonable for the conduct to have the proscribed effect.

The tribunal found Mr Justin resigned immediately after the exchange, but treated that as an over-reaction rather than evidence that the statutory threshold had been crossed. It noted he had not raised the matter with management before resigning, and that when he contacted HR on the next working day he was given advice about the grievance process and invited to reflect on and retract his resignation. The claim against the first respondent was withdrawn, and the claim against the second respondent was dismissed.

Separately, the tribunal made a costs order against the second respondent for the adjournment, finding that the adjournment had been caused by its disclosure failings and failure to comply adequately with the case management order. The costs were summarily assessed in the undisputed sum of £1,173.90. No substantive compensation was awarded on the harassment claim.