Following on from last month’s article about the protection from harassment contained in the Equality Act 2010, this month there was an interesting case of an example of a failed claim for racial harassment, in interesting circumstances.

Miss Sibanda was employed as an HR Officer at a company called Clinisupplies Limited. Her employment began in 2013 but ended after she pursued a claim against her employer alleging racial discrimination. The most interesting claim she pursued was that the CEO had referred to “keeping the chimp at bay”, which Miss Sibanda said amounted to harassment of her as a black individual.

The comment had been made as part of a discussion focussing on a concept known as ‘The Chimp Paradox’, which the employment tribunal accepted was a widely known theory of mind management that looks to differentiate between rational thoughts and irrational, emotional thoughts.

The phrase was coined by psychiatrist Steve Peters, and his book of the same name has become a bestseller. Attendees at a meeting were encouraged to be aware of the impact of their emotions on their actions, and on others.

This could affect their performance and that of the company. Miss Sibanda said that when she was asked how she kept her chimp at bay, she found this offensive. She claimed not to have been aware of the chimp paradox theory at the time. She also disputed the fact that this concept had been discussed at a meeting she had attended. The tribunal rejected both of these assertions, as they did not find her assertions credible.

What is interesting, however, is that they acknowledged that even if she had understood the context, this did not preclude her from being offended. However, what was unusual in this case was that Miss Sibanda did not complain about this matter at the time. This was despite being an HR professional, and knowing that her employer was planning to roll out training on this concept to the whole company.

This was surprising. The tribunal also noted that everyone involved in the meeting, regardless of race, was asked the same question. The context of the question was clear, and it was apparent that the question posed to Miss Sibanda was not in any way related to her race. To determine whether harassment has occurred, there must be a link between the alleged conduct and the individual’s protected characteristic. When assessing the impact of the alleged conduct, whilst the starting point is the subjective opinion of the individual involved, this opinion must also be objectively reasonable. Miss Sibanda’s assertions did not meet either element of the test.

Regardless, the tribunal fully acknowledged that despite the concept of an ‘inner chimp’ being part of a widely recognised mind management theory, such words were also used inappropriately in a racially derogatory manner. They noted that there were “well publicised, deplorable incidents of racist language which includes the word chimp being used of a black person”. In those circumstances, it was important for employers to be acutely aware of the potential for offence to be taken; there was a need for the context of such discussions or training to be “absolutely clear” to avoid the potential for unwitting offence to be caused.

This case is a useful example of how certain words and phrases used with innocuous intentions, can also have the potential to offend. Employers (and employees) must be conscious of how such words or phrases could be perceived, and take appropriate measures to ensure that the (non-discriminatory) context in which they are used is unambiguous.

Safia Tharoo
Barrister, 40 Bedford Row, London