J Logo v Payone GmbH & Ors

Factual Background

The Law

Harassment

40 Employees and applicants: harassment

An employer (A) must not, in relation to employment by A, harass a person (B)—

26 Harassment

A person (A) harasses another (B) if—

In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

The relevant protected characteristics are – age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.[emphasis added]

the Employment Tribunal should identify the “conduct” that A “engages in”

the “conduct” must be “unwanted”

the “conduct” must be “related to” a relevant protected characteristic

the “conduct” must have the “purpose” or “effect” of “violating B’s dignity”, or creating an “intimidating hostile, degrading, humiliating or offensive environment” for B. I will refer to “violating dignity” compendiously to include creating an intimidating, hostile, degrading, humiliating, or offensive environment

if the “conduct” has the “purpose” of “violating B’s dignity” harassment is established

if the conduct does not have the “purpose” of “violating B’s dignity” in deciding whether it has that “effect”, the Employment Tribunal must take account of the “perception of B”, the “other circumstances of the case”, and “whether it isreasonable for the conduct to have that effect”

It is important to note that it is the “conduct” that must be “related to” the protected characteristic. Thus, if it is asserted that a failure properly to investigate a grievance alleging discrimination constitutes harassment it is not sufficient that the grievance was related to the protected characteristic, the failure properly to investigate the grievance, which constitutes the conduct, must be related to the protected characteristic.

“related to”

In my judgment the change in the wording of the statutory prohibition of harassment from unwanted conduct “on grounds of race” in section 3A of the Race Relations Act 1976 (as inserted by regulation 5 of the Race Relations Act 1976 (Amendment) Regulations 2003 (SI 2003/1626)) to “unwanted conduct related to a relevant protected characteristic” affects the test to be applied. Paragraph 7.9 of the Code of Practice on the Equality Act 2010 encapsulates the change. Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, “related to” such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader inquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. As Mr Ciumei submitted, “the mental processes” of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the claimant. It was said that without such evidence the tribunal should have found the complaint of harassment established. However such evidence from the alleged perpetrator is not essential to the determination of the issue. A tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place.

I consider that the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”. The limitations are that the conduct must be unwanted and it must have the purpose or effect of violating dignity. Where the conduct has that effect, but not that purpose, the Employment Tribunal will go on to consider the perception of B, the other circumstances and whether it is reasonable for the conduct to have that effect. Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no-one’s interest that colleagues should constantly be walking on egg-shells, it is also important that proper protection is provided against violation of dignity at work. …

I consider that the Employment Tribunal erred in law in its approach to the concept of treatment related to a protected characteristic. On a fair reading of the judgment, the Employment Tribunal required that there must be a mental element so that, essentially, the treatment is because of the protected characteristic. At paragraph 18 the Employment Tribunal stated in terms that a mental element is required in a claim of harassment as much as in a claim of direct discrimination. The Employment Tribunal made a similar point at paragraph 107. The Employment Tribunal erred in law in that analysis. There is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.

Take, for example, a person who unknowingly uses a word that is offensive to people who have a relevant protected characteristic because it is historically linked to oppression of people who have the protected characteristic. The fact that the person, when using the word, did not know that it had such a meaning or connotation, would not prevent the word used being related to the protected characteristic. That does not necessarily mean the person who used the word would be liable for harassment, because it would still be necessary to consider whether the conduct violated the complainant’s dignity. If the use of the word had that effect but not that purpose, the Employment Tribunal would go on to consider the factors in sub-paragraph (4) of section 26 EQA. That said, there could be circumstances in which, even though a word was used without knowledge of the offensive connotations, having considered the factors in sub-paragraph (4), the perception of the recipient, other circumstances and whether it is reasonable for the conduct to have that effect, the use of the word would nonetheless amount to harassment under section 26 EQA. [emphasis added]

“a relevant protected characteristic”

Protection is provided because the conduct is dictated by a relevant protected characteristic, whether or not the worker has that characteristic themselves. This means that protection against unwanted conduct is provided where the worker does not have the relevant protected characteristic, including where the employer knows that the worker does not have the relevant characteristic. Connection with a protected characteristic may arise in several situations: …

• The worker is known not to have the protected characteristic but nevertheless is subjected to harassment related to that characteristic.

• The unwanted conduct related to a protected characteristic is not directed at the particular worker but at another person or no one in particular.

• The unwanted conduct is related to the protected characteristic, but does not take place because of the protected characteristic. [emphasis added]

21 Thirdly, although in many cases, the characteristic relied upon will be possessed by the complainant, this is not a necessary ingredient. The conduct must merely be found (properly) to relate to the characteristic itself. The most obvious example would be a case in which explicit language is used, which is intrinsically and overtly related to the characteristic relied upon. [emphasis added]

“purpose”

Time limit

120 Jurisdiction

An employment tribunal has, subject to section 121, jurisdiction to determine a complaint

relating to—

123 Time limits

Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—

The EAT referred to the well-known judgment of Auld LJ in Bexley Community Centre (trading as Leisure Link) v Robertson [2003] IRLR 434, at paras 23–24 :

“If the claim is out of time there is no jurisdiction to consider it unless the tribunal considers that is just and equitable in the circumstances to do so. That is essentially a question of fact and judgment for the tribunal to determine … The tribunal, when considering the exercise of its discretion, has a wide ambit within which to reach a decision.”

In Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 , Wall LJ at para 24 said that Robertson emphasises the wide discretion which the ET has. Sedley LJ said at para 31:

“There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen in relation to the power to enlarge the time for bringing ET proceedings.”

In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 Leggatt LJ, with whom I agreed, said:

“18.

First, it is plain from the language used (‘such other period as the employment tribunal thinks just and equitable’) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980 , section 123(1) of the Equality Act 2010 does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corpn v Keeble [1997] IRLR 336 ), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] ICR 800, para 33 . The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under section 7(5) of the Human Rights Act 1998 : see Dunn v Parole Board [2009] 1 WLR 728, paras 30–32, 43, 48 ; and Rabone v Pennine Care NHS Trust [2012] 2 AC 72, para 75 .

“19.

That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).

“20.

The second point to note is that, because of the width of the discretion given to the employment tribunal to proceed in accordance with what it thinks just and equitable, there is very limited scope for challenging the tribunal’s exercise of its discretion on an appeal. It is axiomatic that an appellate court or tribunal should not substitute its own view of what is just and equitable for that of the tribunal charged with the decision. It should only disturb the tribunal’s decision if the tribunal has erred in principle—for example, by failing to have regard to a factor which is plainly relevant and significant or by giving significant weight to a factor which is plainly irrelevant—or if the tribunal’s conclusion is outside the very wide ambit within which different views may reasonably be taken about what is just and equitable: see Bexley Community Centre (trading as Leisure Link) v Robertson [2003] IRLR 434, para 24 .” [emphasis added]

I cannot accept that argument. As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard. Nor do I consider that the original decision of the Employment Appeal Tribunal went any further than that. The error identified by Langstaff J, as I read his judgment, was that the tribunal had failed to give any consideration at all to the reason for the delay in bringing the claim and had therefore failed to have regard to a relevant factor. I agree, however, with Judge Shanks in para 27 of his judgment given on the second Employment Appeal Tribunal appeal that Langstaff J was not

“intending to suggest that if a claimant gives no direct evidence about why she did not bring her claims sooner a tribunal is obliged to infer that there was no acceptable reason for the delay, or even that if there was no acceptable reason that would inevitably mean that time should not be extended.” [emphasis added]

The Role of the EAT

The decision of the Employment Tribunal

The Black Face Incident - 18 November 2016

The ‘black face’ incident …

R1’s Christmas party took place on 18 November 2016. At that time Miss Ganswindt job was the Customer Service Agent for the UK & Republic of Ireland. …

The claimant’s recollection (set out in his paragraphs 15 and 16) is that there was a conversation during which Miss Ganswindt and another customer care colleague asked whether he was dressing up for the evening event. The claimant states that he confirmed his attendance and asked Miss Ganswindt if she was attending and whether she was following any theme. He states that she refused to confirm whether she would be dressed in any theme and burst into laughter (C - para.16).

According to Miss Ganswindt, the slogan of the event was Oscar Night (AG para.6) Miss Ganswindt, who is white, attended the event dressed as the character played by Whoopi Goldberg in the Sister Act films. A photograph of her at the event (C:1485) shows her together with a colleague dressed as Princess Fiona from Shrek.

The claimant describes his experience of attending this event in para 19 to 24 of his statement. He describes experiencing an immediate rush of anxiety when he saw the person he later realized to be Ms Ganswindt in black face paint. He observed some employees laughing at him and felt very isolated as the only person of black and minority ethnic background in his immediate verticity particularly when he was only a few days into his induction with a new employer in a foreign country. In his paragraph 22 he explains that the association he immediately felt between seeing Miss Ganswindt dressed in black face and the dehumanization of Black people caused him to suffer a panic attack. He went into a toilet cubical to recover. …

We do not criticize him for not complaining. …

We accept her evidence that she choice the costume before she met the claimant so she was not aware that he was Black or that he would be present. …

One of the difficulties when an allegation is raised for the first-time years after the event is that one party or possibly both parties have not had cause to recall the details until relatively recently. The claimant bases his allegation that Miss Ganswindt deliberately sought to humiliate him or create an offensive environment for him on her having laughed and been unforthcoming when he asked about whether there was a theme for the event. These are details that Miss Ganswindt does not recall. [emphasis added]

As to LOI.4.a, the event happened. It is conceded by the respondent that this incident would amount to race related harassment on the basis of the unwanted conduct causing the harassing effect and we accept that it does. The claimant argued that this incident was harassment because Miss Ganswindt had the purpose of creating the harassing effect.

We refer to but do not repeat our discussion at paras. 134 to 142 in which we concluded that Miss Ganswindt dressed up in costume using black face paint not because she intended to harass the claimant, whom she had not met at the time she decided on her costume. We accept, after careful consideration, that she was genuinely unaware that a black British person would be likely to associate a white woman dressed as a black actress with offensive and demeaning portrayal of people based on race. [emphasis added]

Dinner 19 June 2019

FR leaving event

Mr Risch had left the company in 2019 to move to Worldline but, when the latter brought Ingenico in 2020, he transferred back to R1. During the interim, he was invited back for a leaving event which took place sometime after he had formally left.

When the claimant started his claim he alleged (para.16.8 - A:51) that Mr Risch attended a dinner in Frankfurt with the claimant and “made a crude ‘joke’ over dinner, the punchline of which involved a black man having sexual intercourse with an animal.” This was the allegation responded to (A:68 at para 3.14.7) where it was simply denied and the respondents stated that “the claimant has failed to particularize this allegation and it is, in any event, out of time”. It was covered in a limited way in Mr Risch’s para.16 where he recalled the dinner but did not recall speaking to the claimant making any jokes to him or making a joke of that kind.

The claimant’s statement evidence about this incident was contained in para 164 onwards. He describes the table and who was sitting in various spaces including where Mr Risch was sitting. He describes much but not all of the conversation being in German and then an incident where Mr Risch was conversing in German with a named colleague and then burst out in loud laughter. The claimant then alleges that “I looked over to him and stated words to the effect of ‘that must have been funny’ he stated the joke would be difficult to translate in English, but it was about “black man fucking a rabbit”. The claimant stated that he believed that this was something Mr Risch would genuinely be thought to be amusing but that the colleague looked alarmed and apologized later. This is a considerable amount of extra detail compared with the original allegation.

When Mr Risch gave evidence, he stated that he wished to make an additional comment about this allegation. He denied that there had been a joke on his part with regards to what the claimant was referring to. He stated that, since making his witness statement, he has had another conversation with the colleague named by the claimant and, although Mr Risch himself had not recalled the conversation, the colleague had reminded him of it. Mr Risch evidence now was that at the dinner he had recounted to the colleague in question that in his new employment he had met a former colleague of them both who had told him about having to review adult material as part of a due diligence process. He says that it was this that he was relating to the colleague at the dinner party

“it was no joke at all, but I was telling this colleague about the really bad stuff that she had to face when onboarding the merchants… well it was bad stuff like people having sex with animals for example and that is what is referred to in this paragraph.”

When cross examined about it he said “I cannot [imagine] that this has ended up in bursting laughter. More shocking.” He did however accept that the words alleged by the claimant were stated that night in German or in English.

We accept that words alleged were probably used. Mr Risch clearly struggled with his recall of this event. His initial recollection had simply been that nothing happened. Naturally, we expect people to come to Tribunal and, in the words of the oath or affirmation, tell “the truth, the whole truth and nothing but the truth” but we think it is to his credit that he volunteered this further information. His explanation for late recall is plausible. The first time a comment it heard is the most memorable occasion – for the claimant, that would have been at this event, for Mr Risch it would have been when the story was first relayed to him. If a long passage of time occurs before the individual has to remember the occasion, then their recall is likely to be worse, in our experience. We think that the event in June 2019 was therefore more likely to be memorable to the claimant than to Mr Risch. It is not clear, even now, how much Mr Risch remembers himself rather than accepts on the basis of being reminded by the colleague.

Given the claimant’s modest German language skills, it is more likely than not that this comment was explained in English as well as in German. There is a coincidence in the claimant’s account and the words Mr Risch accepts he used in German (although he was not clear about their use in English). It is such a striking and indeed shocking comment that it is unlikely that this was invented by the claimant. However, it appears that, as relayed to the claimant, it was deprived of the context – namely a story about what a colleague had experienced.

We think it is the sort of situation were although the adjective black to describe the man in the offensive material does not appear to have been an important part of the story that cannot reasonably have been apparent to the claimant. Furthermore, we think it probable that an adjective about colour would not have be used if the participant in the image was white. There can be no doubt that what was described as likely to offend. We accept that the claimant was offended and felt demeaned as a black person. It was reasonable for that comment to have that effect.

This incident is not referred to in the reasons for resignation given in ... . We consider that the allegation that this will stay with him for the rest of his life is overstated as he didn’t complain about it when he took the opportunity to complain about other instances.

We consider the claimants evidence at para.165 that Mr Risch laughed. We think the claimant inferred that a joke had been told from the laughter, but that description is not necessarily inconsistent with the R1 witnesses denying that they were telling a joke. People can laugh for more than one reason and Mr Risch now giving evidence long after the event is doing his best, but he is hampered by the difficulty of recalling it. We accept that there probably was laughter. [emphasis added]

For reasons we explain at para.256 above we accept that a comment about a black man fucking an animal probably was made at a dinner in around June 2019. Given the claimant’s modest German it is more likely than not that the comment was explained in English as well as in German. He could quite easily (and reasonably) have been offended by this comment and felt demeaned as a black man hearing such a very offensive comment. As we explain above we think that it is hard to understand why the word black was included in the narrative because it is not at all a relevant detail for the purpose of the description of the kind of offensive material that the former colleague had experienced. We do not think that the adjective would have been used if the participant in the image was white and therefore this comment was related to race.

It is unrealistic in a social setting to expect the claimant to explore what was meant more directly by something so obviously offensive. The claimant says that the laughter meant that he believed that they found this actually funny. There may well have been laughter. This was not necessarily inconsistent with Mr Risch explaining in German something which was shocking and provoked nervous laughter and therefore not necessarily inconsistent with them denying that they were telling a joke. As we’ve explained we consider that Mr Risch has done the best he can to try and recollect the event but now he is hampered by being asked about it for the first time so long after the event.

We have concluded that Mr Risch did not deliberately set out to offend or humiliate the claimant but, given the shocking nature of the comment, we accept that it did so. In all the circumstances, it is reasonable for the conduct to be regarded as having the harassing effect, the test of harassment is made out and the comment was related to race. It occurred in June 2019 and the question of jurisdiction therefore falls to be considered in due course. [emphasis added]

Time

A claim based on LOI.4.a [the black face incident] should have been presented by 17 February 2017 and was actually presented on 16 March 2021 nearly four years late. A claim based on LOI.m.[the comment at the dinner] should have been presented around 10 September 2019 at the latest - if one assumes in the claimant’s favour that the incident happened on 11 June 2018 (see the claimant’s statement at para.163). In order to be in time, he should therefore had contacted ACAS or presented no later than 10 September 2019. He contacted ACAS on 6 February and therefore the claim based on this allegation is approximately four months late. [emphasis added]

The Time Cross-Appeal

… A claim based on LOI.4m, should have been presented around on 10 September 2019 at the latest – if one assumes in the claimant’s favour that the incident happened on 11 June 20189 (see the claimant’s statement at para. 163). In order to be in time, he should therefore have contacted ACAS or presented no later than 10 September 2019. He contacted ACAS on 6 February 2021 and Day B was on 18 February 2021 and therefore the claim based on this allegation is approximately 18 months late 4 months late.

The time determination

We consider that the respondent has suffered prejudice in relation to LOI.4.m because the way in which Mr Risch’s evidence emerged itself demonstrates that his memory was adversely affected by the passage of time.He had no recollection of the meal or conversation at all and only was able to comment upon the allegation having consulted someone else. It is entirely possible that his recollection would have been more extensive had the allegation been made in full detail in good time.

So far as LOI.4.a is concerned the conduct complained of is not in dispute. The respondent advisedly accepted that it met the statutory test for harassment, subject to jurisdiction. Furthermore, there is some photographic evidence to be relied on. Mrs Fischer’s evidence about this event changed. The claimant contended that her credibility was powerfully affected by this. We’ve accepted however that Mrs Fischer had been to the event before and planned to go but had been unable to at short notice which is how she was confused.

The change in her evidence shows how memory of an event can be affected by the passage of time. The claimant alleges that he was powerfully affected by this incident (see his para 23 and 24) and has now named a relevant witness. Even if he was still in employment, the difficulties experienced by Miss Ganswindt and Ms Fischer in recalling the event and conversation before it show that he might also have problems recalling detail.

The claimant relies on fear of losing employment if he raised the claims at the same time about the respondent and we note his paragraph 26. However there is no evidence that he had any basis for such a fear.

Overall, we do not think that the claimant has put forward a convincing explanation for the delay in presentation of the claim based on either event. He relies upon job and security and financial reasons which would undoubtedly have been matters to weigh in the balance when deciding whether to take action or not. His claim to have been unaware of the process or lacking an English language employee handbook is not a sufficient explanation, in our view, for not taking action if he was as effected by it then as he now says. It may be understandable that a new employee in a new company not sure of the culture in the company who has family responsibilities does not take action about an event such as that described in LOI.4.a. In our view that is, in essence, a judgement call that he was entitled to make. That does not mean that he is entitled years later to say that he should be able to bring an Employment Tribunal claim.

The arguments on whether it is [just and equitable] to extend time raised by the claimant as set out in CSUB para 34 and following. Amongst these the claimant states he was fearful of losing employment by retaliatory action but there has been no evidence of the risk of that being at all likely to come to pass and we do not consider it to objectively be demonstrated to be a reasonable fear.

Overall, we do not consider it to be [just and equitable] to extend time for these two claims and the tribunal does not have jurisdiction to consider them. The claimant does not succeed on any heads. [emphasis added]

The Time Appeal

As regards whether or not to extend time for the otherwise successful allegations - the tribunal failed to apply the correct law:

Posting the Pure Blond advert on WhatsApp - 19 December 2020

WhatsApp messages 3

On around 19 December 2020, Stefan Schrader, the second respondent, posted a video on the WhatsApp group of an advertisement for a brand of beer called Pure Blonde. … The claimant accepted the description put to him by counsel for the respondents who described the advert as depicting a utopia of blonde people who make Pure Blonde beer who have been splattered in mud at the end of the advertisement. … This image shows a group of young, toned, blonde people apparently waving. The front row have what appeared to be mud splats on them and one is holding a bottle of beer. The claimant stated that the people had been ‘stained’ with mud but accepted that a lorry that turned up to collect the beer, drove away and splattered mud on them. He agreed that the lorry driver opened a bottle of beer on leaving using a bird that was flying past him. The claimant did not agree that it was meant to be a funny advert.

The respondent’s case is that the hair colour of the people in the advertisement is a play on that fact that it is a blonde beer. The claimant stated that he did not see it as a joke but was offended by the pure blonde utopia depicted. In para.127 and following of his witness statement, the claimant explained his concern as being that the advert appeared to promote an all-white utopia without any black or brown people and associated that with the ideology of Nazis “both historically and in the present day as it pertained to the ‘pure Aryan race’.” The claimant has put in evidence a copy of the cover of a 1938 calendar to illustrate the point … . It was suggested to him in cross-examination that when he implies that such Nazi ideology was being circulated in the workplace and was highly concerned that it was posted by a German colleague in a predominantly German WhatsApp group he was stereotyping because he was eliding being German with being a Nazi.

He denied that, saying that was ludicrous. However we do think there is an element here of the claimant eliding being German with being a Nazi. Why else would it be relevant to state that it was posted by a German colleague? What otherwise would be ‘highly concerning’ that some of that nationality placed the post.

When accepting that there was no negative depiction of black people in the advert the claimant said “there doesn’t have to be. It’s the omission of black people of ethnic minority people in the advert that sees pure blond and speaks to the Aryan race coming from a German group.” Based on this answer and his statement para.128 we have formed the view that the claimant would have been much less likely to make a connection with the Nazi ideology of the Aryan master race if this advertisement had not been posted by a German.

When Mr Schrader was cross examined about it he said that he could not see that someone who was not white could be offended by this advert and if he had thought that he definitely would not have shared it. While not denying that there was a Nazi ideology of the Aryan race of predominantly blonde people, Mr Schrader said it was simply the name of a beer and he had interpreted the message of the advert completely differently but did not see any links to the holocaust or African minorities in the advertisement.

The claimant suggested that Mr Schrader did not answer the question about whether he was comfortable showing it to holocaust victim for example, but we consider that he was open and honest in his answers and accept that he would not have posted it if he had thought people would be offended. The claimant said in his evidence that he had already had experience that Mr Schrader had made a comment (see para.270 above), but we have found that to be based on a misunderstanding. We accept his evidence that he considered the advert to be humorous and did not see any potential for offence. [emphasis added]

The Tribunal is unanimous that this particular allegation of race related harassment fails but there is split reasoning. We all accepted that, as a matter of fact, R2 considered the advert to be humorous. Of course, this does not preclude it also being an act of harassment but we all also accept that he did not see the potential for offence and therefore conclude that his action did not have the purpose of creating the harassing effect.

The majority (NLMs Holford and Bhatt) see no connection with race in this post whatever and find that it is straightforwardly about a beer the name of which is Pure Blonde and the video contains blonde people in a pure world as a play on words because it is Pure Blonde beer. NLMs Holford and Bhatt not only accept Mr Schrader’s evidence that he thought it was humorous but do not see any connection with race at all.They consider it offensive for the claimant to have assumed that it was deliberate rather than thoughtless by Mr Schrader whom they accept did not see any possibility of causing offensive.

The minority (Employment Judge George) accepts that there is a play on words between an Australian beer called Pure Blonde and blonde hair. However, her view is that is a connection with race because hair colour, like skin colour, is an aspect of race and, typically, blonde people are white. The attempt at humour appears to be to contrast the alleged purity of the beer, the purity of the world they live in and the pure white of the clothing with the impurity of mud. That latter point does not in the view of any of the tribunal members mean that the advert is connected with race.

Judge George considers that the connection with race is tenuous and weak. Overall, there is a play on words between Blonde beer and blonde people and an attempt to use mild comedy to sell beer. Furthermore, in her view, the connection with race is not the connection contended for by the claimant which is that there is a connection with the Nazi ideology of the pure Aryan race.

What the claimant is doing is reading into the advertisement that it is projecting a world which is a utopia because it is only occupied by white and blonde people and that is not an interpretation that any of the Tribunal agree is a reasonable one to take, based on the description given to us of the advertisement.

Notwithstanding their differing conclusions on whether the advertisement is related to race, the Tribunal is unanimous that it is not reasonable for the post to be regarded as having the harassing effect. Judge George’s reasoning is that, as Underhill LJ says in Richard Pharmacology Ltd v Dhaliwal it is not every racially slanted adverse comment or conduct which violates a person’s dignity. The advert cannot reasonably be described as an adverse comment and is not derogatory towards black people.The relationship with race is tenuous and weak and the presumption that offence was intended was itself based upon the nationality of the person posting the advert. In those circumstances, given the mild attempt at humour, the Tribunal are unanimous that it is not reasonable to regard Mr Schader’s actions as having the harassing effect.

As with the other WhatsApp messages, the unanimous view of the Tribunal is that, a post into a WhatsApp group which has both black members and non-black members treat all of them the same and there is no less favourable treatment. As above, we accept that R2 himself did not see any connection with race in this advertisement. Overall, he was open and honest about his answers, and we accept that he would not have posted it, if he had thought people would be offended. [emphasis added]

The Pure Blond Appeal

As regards Issue 4(u) ‘pure blond’ – erred in law in holding that the Third Respondent did not contravene s26

As regards Issue 4(u) ‘pure blonde’ video failed to properly apply the law as regards ‘related to’:

As regards Issue 4(u) ‘pure blonde’ video in deciding whether any conduct falling within sub-paragraph s.26(1)(a) has either of the proscribed effects under sub-paragraph (1)(b), failed to apply the correct law, including failing: failing to ask the ‘subjective question’ and / or failing to take into account subjective factors.

As regards Issue 4(u) ‘pure blonde’ video in analysing the video for the purpose of the statutory test considered it out of context and / or in the context of its publication rather than as sent by Mr Schrader.

The finding of ‘no connection with race’ at §442 was perverse.

Disposal