Discriminatory harassment – it is not about intent but perception.

This month, an Employment Tribunal ruled in favour of Ms Tapping, former Director of Legal and Governance at Peterborough City Council, on two counts of racial harassment. Ms Tapping, who is Black and of Jamaican and Caribbean heritage, had brought 43 complaints against the council, alleging discrimination and harassment during her tenure from November 2022 to August 2023.

While the tribunal dismissed 41 of her claims, it upheld two incidents as unlawful racial harassment.

1. The first involved a comment by Mr Gladstone, Interim Head of Legal, who asked Ms Tapping if she was friends with Ms Omoregie, also a black woman, who had joined the Council.  He explained “because it is not uncommon for senior leaders to recruit people they have previously worked with or who are otherwise professionally known them”

The tribunal said “Notwithstanding the claimant has in our judgment overstated the impact upon her and wrongly attributed a malicious motivation to Mr Gladstone, and that she did not initially complain about the matter, we ultimately conclude that it was reasonable for her to be offended by the comment because of the implicit suggestion, as she perceived it, that two black women in senior roles must know one another, alternatively that Ms Omoregie had not been recruited by the claimant entirely on merit.  Whilst there are no grounds to infer these were Mr Gladstone’s views in the matter, we do not consider that it was unreasonable for the claimant to be offended by the question and to experience an adverse work environment.”

2. The second involved a complaint concerning holiday photos shared by Ms Booth, the council’s CFO in a work WhatsApp group.  These photos featured almost naked Black women.  Ms Tapping was the only Black member of the group.   The Tribunal noted that whilst Ms Booth certainly did not intend to offend, “the pictures focus on the black performer’s expose buttocks, rather than for example her abilities (or otherwise) as a performer or dancer, lead us to conclude that the image can be said to relate to race and that it was ultimately reasonable for the clamant to feel that it created a degrading environment for her and black women in general.  We think it did offend her sense of what it is and what it takes to be a successful professional black woman.”

This case has drawn attention to:

• The responsibility of public institutions to maintain inclusive and respectful workplaces.
• The importance of addressing microaggressions and subtle forms of bias, especially in senior leadership settings.
• The legal threshold for harassment, which does not require intent but focuses on the impact of behaviour.

While the council was cleared of most allegations, the upheld claims serve as a reminder that even isolated incidents, unintentionally made without malicious intent, can constitute discriminatory harassment. 

If you’re an employer concerned about preventing discriminatory harassment, or an employee experiencing behaviour that makes your working environment feel hostile or degrading, our Employment Team can help. Contact us today by emailing [email protected] or calling 01392 477983.