Whilst the protection from discrimination afforded to employees in the Equality Act is incredibly important, the protection from harassment is equally significant. Harassment is defined as unwanted conduct that is related to a person’s protected characteristic, which has the purpose or effect of violating that person’s dignity, or creates an intimidating, hostile, degrading, or offensive environment for them.
This month, the employment tribunal heard a case brought by Ms Muna Abdi against her employer, Deltec International Courier Limited. Ms Abdi identified herself as a black female of Somali origin who was a hijab-wearing Muslim.
A discussion took place between herself and two work colleagues on the subject of ‘white privilege’, in which one of them stated that ‘the majority of crimes in England are made by black people’ [sic]. Ms Abdi challenged this assertion, and her colleagues attempted to research their argument on the internet. Despite finding information that did not support their contention, they reiterated their position. Shortly after this heated discussion, Ms Abdi had to log into a computer with a colleague’s login details.
She saw a WhatsApp chat that included the colleagues with whom she had had the heated exchange, as well as her manager and others. The chat was filled with highly offensive, expletive-laden comments about immigrants and Muslim women. She later saw further messages of similar nature and noted that the name of the group had been changed to ‘Alhamdulillah’ with the display picture changed to a black hijab.
Ms Abdi reported the WhatsApp chat to HR, who conducted an investigation. This led to disciplinary warnings being issued to her manager and the dismissal of some of her colleagues. Despite this, Ms Abdi resigned from her employment and brought claims of harassment to the employment tribunal.
The employer argued that in respect of the comments about crime, this constituted free speech. This was strongly rejected by the tribunal, who had no difficulty in finding that the comments were related to Ms Abdi’s race and had both the purpose and effect of creating an intimidating and hostile environment for her.
As regards the WhatsApp messages, the employer (unsurprisingly) conceded that these amounted to harassment. A further hearing will now take place to determine the level of compensation to be awarded to Ms Abdi.
This case is interesting because although the comments about the crime were directed at Ms Abdi, the WhatsApp chat was not. It was purely coincidental that she saw it at all. Yet having seen it, it was clearly obvious that it amounted to harassment of her, given the content of the conversation. Employers, therefore, need to ensure that their employees know it is not just inappropriate comments directed at an individual that are prohibited, but even conversations (whether oral or written) with others.
Safia Tharoo
Barrister, 40 Bedford Row, London
