One of the key provisions in the Equality Act 2010 is the prohibition of harassment on the grounds of protected characteristics (sex, race, disability, religion or belief, sexual orientation, etc.). Harassment is defined as conduct that is unwanted, and that has the purpose or effect of violating their dignity, or creating and intimidating, hostile, degrading, humiliating or offensive environment for them.

The impact of the words ‘purpose or effect’ is that the conduct does not have to have been done for the purpose of creating the offensive environment – it is sufficient that it did in fact create such an environment.

An interesting example of this occurred in the events which led to the dismissal of Ms McGonigle by WM Morrisons Supermarkets Plc. Ms McGonigle was a Team Leader at Morrisons.

In February 2021, complaints were made that Ms McGonigle had pulled down the hijab of her Muslim colleague on two separate occasions. The complainant, referred to as ‘S’, considered that these actions were disrespectful to her religion. An investigation was undertaken, and witnesses were spoken to. When Ms McGonigle was interviewed, she admitted to pulling down S’s hijab on one occasion but not the other; she stated she had not acted with malice, but was just having a laugh. She admitted she had told S that she looked pretty without her hijab.

Ms McGonigle was invited to a disciplinary hearing on the basis that her actions amounted to gross misconduct. One of the arguments she put forward was that S did not in fact wear her hijab all of the time, and provided photographs to evidence this.

She also suggested that she had seen S remove her headscarf and adjust her hair. The argument appeared to be that S could not have been offended by Ms McGonigle removing her hijab if she herself also did so.

The disciplinary manager disagreed. She considered that it was not appropriate for her to make an assumption that S would not have been offended by Ms McGonigle’s actions, particularly when she had made clear that she had been.

She also considered that it was S’s choice when to wear her hijab, and that to argue that it was not worn all of the time was simply an attempt to downplay the severity of the offence. As regards the argument that the act was done in jest and was not malicious, the disciplinary manager found this difficult to believe.

She did not believe there were any circumstances where pulling down a colleague’s headscarf could be done in jest, and that, on balance, Ms McGonigle would have understood the reasons why S wore a hijab and the implications of her acts. It was also noted that Ms McGonigle confirmed she was willing to apologise to S and that there had been no intention to disrespect her religion.

After considering all the evidence, Ms McGonigle was dismissed without notice on the basis that her actions amounted to gross misconduct. She appealed that decision, but after further investigation, her appeal was dismissed.
Ms McGonigle brought a claim to the employment tribunal, alleging that she had been unfairly dismissed. The tribunal noted the allegations amounted to a breach of Morrisons’ Respect in the Workplace policy, which prohibited discrimination and harassment due to a protected characteristic.

The tribunal was satisfied that a ‘full and thorough’ investigation had been conducted, and that it was entirely reasonable for Morrisons to have accepted the evidence of S and the witnesses to the events.

In any event, Ms McGonigle admitted one of the occasions, but the heart of her case was that she had simply been having fun. The tribunal found that given her position as a Team Leader, it was reasonable to expect her to be fully aware of Morrisons’ policies, and to act in accordance with them. Since she had failed to do so, she had committed gross misconduct and that it was reasonable for her to be dismissed. Her claim therefore failed.

This case is a useful reminder of the importance of employees raising issues of harassment in the workplace, and not simply suffering in silence.

All too often, individuals are forced to laugh off conduct that they find deeply offensive. Whilst this case ultimately led to a dismissal, there are other ways that such matters can be handled if appropriate, even if it is simply to bring to the attention of the individual involved the hurt that their actions can cause.

Safia Tharoo
Barrister, 40 Bedford Row, London