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17 January 2013
Employment Appeal Tribunal (EAT)
Offensive comments about another religion do not amount to harassment of people of that religion if the speaker did not intend to offend, according to the EAT.
The question ‘What's happening to the f..ing Pope' shouted in a pressured newsroom offended a Catholic sub-editor present at the time. The question was to query why there was a delay in producing a story about the Pope during a visit to the UK - not a question about the Pope himself. The sub-editor argued this amounted to harassment - ie unwanted conduct on the grounds of (the wording in the Equality Act 2010 is different now - the conduct only has to ‘relate to' the protected characteristic) religion or belief which had the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. In determining this, it is the subjective view of the victim that matters, so long as that view is reasonable.
The tribunal held that the conduct was unwanted. But although the sub-editor was offended, his taking offence was not reasonable because the comment was clearly directed at the lateness of the story, not towards the Pope or to Catholics in general. The tribunal's conclusion was challenged before the EAT on the ground that the tribunal had taken account of the speaker's motive, when the relevant question is the effect of what was said. The EAT disagreed, quoting its judgment in Richmond Pharmacology v Dhaliwal that a comment which is evidently innocently intended will have a very different impact from a comment evidently intended to hurt. The EAT upheld the tribunal's decision.
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