Heafield v Times Newspaper Ltd (Religion or Belief Discrimination)  UKEAT 1305_12_1701 (17 January 2013) – read judgment
The Employment Appeal Tribunal (EAT) has found that the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.
The Appellant, a casual sub-editor on the Times Newspaper, was a Roman Catholic. He was working at the Times during the visit to the United Kingdom of the Pope in 2010. During March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest. There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?”. When there was no response he repeated the question more loudly. The Appellant was upset and offended what he heard. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.
The definition of harassment was at the material time contained in regulation 5 of the Employment Equality (Religion or Belief) Regulations 2003. In essence, it requires “unwanted conduct” leading to harassment which must violate the complainant’s dignity, and create an “intimidating, hostile, degrading, humiliating or offensive environment’ for him.
The Tribunal held that the use of bad language was evidently merely an expression of bad temper which may have constituted “unwanted conduct” but it was not intended to express hostility to the Pope or Catholicism. Neither elements constituting harassment had been proved. First, the Tribunal found that Mr Wilson did not know that the Appellant was a Roman Catholic; but, more generally and perhaps more pertinently, it found that there was, to put it shortly, no anti-Catholic purpose in what he said.
What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.
In this appeal, the Appellant contended that the Tribunal erred by considering Mr Wilson’s “motive” in saying what he did and that was immaterial to the question of whether his remark was “on the grounds” of the Appellant’s religion.
The EAT’s ruling
The appeal was dismissed. In the view of Underhill J, the Tribunal’s approach had been entirely orthodox. The context in which the phrase was used was relevant to its effect and, in the present case, was such that it was not reasonable for the Appellant to feel that his dignity had been violated or that he had been subjected to an adverse environment.
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