Transcription

• Speaker #0

  Today, in the Lefebvre HR and Employment Law podcast, we're discussing the judgment of an employment tribunal in the case of Wint and Walsall Metropolitan Borough Council, in which an employment tribunal was asked to determine whether voodooism was a religion or belief which was capable of amounting to a protected characteristic under the equality legislation. Interestingly, although the claim for harassment relating to religion or belief concerned voodooism, the claimant in this case did not personally hold a belief in voodooism. This makes the case somewhat unusual, albeit the tribunal found that the fact that the claimant did not hold the religion or belief in question was no barrier to pursuing a harassment claim under the Equality Act. The claimant, who identifies as a black African Caribbean Christian, worked for the council as a support officer. Following a period of annual leave, he failed to attend work for his night shift due to a genuine mistake about the rota. His colleague, who is white, covered the shift. A few weeks later, the same colleague saw the claimant in the office and made a comment to him about having covered his shift and asked him how he could have forgotten about it when it was on the rota. The claimant replied somewhat defensively, to which the colleague responded with a comment about a voodoo doll, this comment forming the crux of this case. Four days later, the claimant was sent home by his manager as he was feeling unwell. Having reflected further on the comment at home with his family, He raised an informal grievance asserting that his colleague's voodoo doll comment had amounted to harassment related to both race and or religion or belief, and that his manager had failed to intervene in the conversation. He then commenced a period of long-term sickness absence. His informal grievance was dismissed, and he brought a claim before the tribunal, alleging that he was offended, as a Christian, by his colleague's comment, which he alleged was, I should have sent you a voodoo doll with pins in it. Before the tribunal, the colleague explained that her comment was in fact, I'm like a voodoo doll with needles in her eyes. And what she meant by that was that she had been exhausted on the night she covered the shift from having to stay up all night and was comparing herself to a voodoo doll with pins in its eyes to keep them open. The claimant submitted that the remark was made because his colleague was aware that voodoo and witchcraft were prevalent in black Jamaican and African cultures. Before the tribunal, both the colleague and their manager gave evidence as to the light-hearted nature of the comment. The Employment Tribunal first addressed the issue of whether voodooism could qualify as a religion or belief capable of protection under the Equality Act. There was no previous authority on the point, and the Tribunal had to refer to dictionary definitions and Wikipedia. It concluded that this was a spiritual belief system which is held by a group of adherents and considered that voodoo is a religion. However, the Tribunal found that the voodoo doll was not an authentic element of that religion. In addressing the fact that the claimant did not personally follow the religion or belief system of voodooism, the tribunal found that it was established law that harassment does not require the person alleging harassment to share the protected characteristic. The tribunal went on to consider whether the criteria laid out in a key case in this area, Granger, were satisfied and found that they were. It then considered whether the comment had amounted to harassment, and considered whether the conduct had the purpose or effect of violating the claimant's dignity. or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. It found that the comment had neither such purpose or effect. The tribunal had preferred the colleague's explanation as to what she had meant by the comment, which was that it actually related to her being exhausted from having to cover the claimant's shift and was simply intended to convey extreme tiredness. In considering whether the comment had such an effect, The tribunal found that the claimant had not been offended at the time of the comment and had only taken offence several days later after having discussed the remark with his family. In addition, his manager had not noticed any change in his behaviour except for feeling unwell, which she did not attribute to what had happened. There had historically been banter between the individuals concerned. The tribunal also found evidence that the claimant had in the past been quick to jump to conclusions which were not always correct. Here, the comment was a generalised comment in the context of tiredness. As to whether that was reasonable and taking into account the claimant's perception and the other circumstances of the case, the tribunal found that he had misheard or misremembered the comment which, although ill-advised on the part of his colleague, did not have the effect of harassing the claimant, taking into account his perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect. The claim was therefore dismissed. Look out for further episodes in this series to stay up to date on all things HR and employment law related.