In the case of Sato-Rossberg -v- SOAS University of London, an employment judge has dismissed claims by a Japanese professor that she was the subject of harassment on the grounds of race when a colleague raised the subject of Japanese food, and said that her family likes this cuisine and that they ate sushi. 

Other allegations were made within the case, but this one seems to be the one which has received the most attention. 

What is harassment in this context?

A claim of harassment on the grounds of race can be made in the employment tribunal where a claimant has been subjected to ‘unwanted conduct’ that has the ‘purpose or effect’ of ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’. 

It is important to note that the words ‘purpose or effect’ mean that the claim can succeed, even if someone did not mean to cause offence or upset to the claimant. However, it is often overlooked that a tribunal must consider whether it was reasonable for the unwanted conduct to have that effect. 

In the context of this case, there was no real dispute about what was said; the main issue for the tribunal was essentially whether it was reasonable for Ms Sato-Rossberg to have felt that the conversation created an intimidating, hostile, degrading, humiliating or offensive environment. 

What was the outcome? 

The claimant was unsuccessful in her discrimination claim. On the conversation about Japanese food, the Tribunal found that the senior colleague was making ‘small talk’ and spoke warmly about her local Japanese restaurant and her family’s love of sushi. 

She did so, knowing that the claimant was Japanese and believing that the claimant would receive this positively. The colleague said nothing detrimental about Japan but was trying to establish a shared point of interest. This was one conversation of many, about many different subjects, that the colleague had with the claimant over the course of 18 months. 

Specifically in Ms Sato-Rossberg’s case, the Judge found that she was hypersensitive and had a ‘predisposition to find fault’ with the colleague in question as evidenced by the list of 26 allegations against her colleague.  The Tribunal commented that the words used in the Japanese cuisine conversation were not even ‘unfortunate’.

‘Hypersensitivity’

In the case of Richmond Pharmacology Ltd v Dhaliwal [2009] IRLR 336, the Employment Appeal Tribunal commented that ‘Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. Whilst it is very important that employers and tribunals are sensitive to the hurt that can be caused by offensive comments or conduct (which are related to protected characteristics) ... it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’

What can we learn?

This is a case where perhaps the outcome may appear unsurprising, however, there is a good deal of case law examples where it is not as ‘clear-cut’. 

• So, what is the line between ‘small talk’ and harassment? 

Each case will be highly fact-dependent. I acted for one of our clients where an employee brought a claim of harassment related to her sexual orientation because another care worker had told an individual our client supports that the claimant was in a same-sex relationship. We successfully defended that claim at Tribunal. Even though the Tribunal accepted that the claimant was a very private person and was upset by this disclosure, the fact that the claimant lived openly in a same-sex relationship and that this was widely known, suggested it was not reasonable for the claimant to have found the conduct offensive. 

• What are the relevant facts and circumstances? 

The Equality and Human Rights Commission has produced a code that refers to relevant circumstances that may need to be taken into account which could include a claimant’s personal circumstances, such as their health, including mental health; mental capacity; cultural norms; or previous experience of harassment; and also the environment in which the conduct takes place. Things like the level of seniority between those making a comment and those receiving it may also be relevant. 

• Fostering a curious culture

This case in my view raises important questions about whether a greater degree of inclusion and equality can be had by colleagues discussing and talking to one another about their background and culture in fostering understanding and inclusion, rather than people being afraid or shy to have genuinely compassionate discussions with one another. Indeed, the judge in this case characterised the discussion as ‘trying to be friendly and find common ground’ and that ‘a reasonable person would not take offence at such complimentary and friendly words’. An environment which encourages understanding rather than hypersensitivity should be the goal for most organisations.   

In the words of Giles Brandreth, ‘The purpose of small talk is not to be controversial, clever or even interesting. It’s simply to fill the silent void with a small gesture of common humanity. It’s a spoken smile, a verbal handshake’. 

If you would like any further advice on this issue or training on the Equality Act 2010 and the practical implications for your organisation, please contact me.