Context is Important

The first was in relation to an accusation of a ‘sawing’ hand motion by a colleague. The argument stood that, as a member of the Sikh faith, the motion made reference to a history of Sikh execution at the hands of Muslims in the 17^th Century. The context was a discussion with said staff member sharing their knowledge of the atrocities perpetuated on members of the Claimant’s religion. Finding the reference ‘offensive, derogatory and humiliating’ the claimant sought to use this as a basis for claims of harassment. A comparison was made in the tribunal to a chocking gesture to illustrate the deaths of Jewish people in Nazi gas chambers.

The tribunal was not convinced. Not only did the claimant not indicate these feelings at the time of the conversation, but also failed to mention them until over 4 months later. While the tribunal did accept that the alleged hand motion did occur – as well as finding that a hand motion in reference to a historic event could be offensive – they found no evidence that sawing gestures generally are offensive to Sikhs. Neither did they find any evidence that the gesture was actually found to have caused offence. This point was dismissed as it was not reasonable for the conduct to have that effect.

The second ground was that a different colleague had referred to a lack of ‘coloured people’ in Herefordshire. The claimant alleged that this remark would not have been made had he been white. Similar to the previous incident, the claimant did not raise this as an issue at the time and only made his employer aware in a grievance submitted several months afterwards.

The tribunal dismissed this ground also. While the comment could have amounted to unwanted conduct, it did not have the purpose of either violating the claimant’s dignity or creating a hostile environment. Emphasis was also placed on the colleague’s earnest use of the phrase and lack of ill intentions towards the claimant.