Offensive comments made in the workplace can cause untold distress and amount to harassment for which employers may well be required to carry the financial can. However, in a guideline decision, the Employment Appeal Tribunal (EAT) found that a doctor’s ill-judged joke that a young patient would benefit from joining terrorist organisation ISIS did not cross that forbidden line.
A British medic of Asian-Indian descent complained to an Employment Tribunal (ET) after the doctor remarked in front of an assembled medical team that if the patient, who suffered from ADHD, joined ISIS that would ‘sort him out’. The medic was the only non-white person who was present to hear the insensitive comment and said that she found it very disturbing. The ET found that the doctor’s words amounted to harassment by way of conduct related to race and ordered the NHS trust that employed the medic to pay her £1,500 in compensation for the injury to her feelings.
In upholding the trust’s challenge to that outcome, the EAT found that the doctor’s comment, which was not addressed to the medic personally, did not relate either to her race or to race in general. There was no evidence before the ET as to the race of the patient and ISIS was in any event a terrorist organisation with international links which attracted misguided support from members of numerous races.
The ET was not entitled to assume in the absence of evidence that there was a significant public perception that ISIS is connected to Asian people, particularly those of Pakistani, Afghan or Iranian descent. The trust had suffered unfairness in that it had been afforded no opportunity to make submissions on that point. In overturning the ET’s decision and the associated compensation award, the EAT found that no properly directed ET could have found that the doctor’s comment was related to race in the manner alleged.
