Harassment in the workplace remains a significant issue for employers. A recent Employment Tribunal ruling Ms Samina Ashraf v NHS England provides useful insights into how harassment claims are assessed in accordance with the Equality Act. The case concerns a multitude of claims brought by an NHS worker, Ms Ashraf, who took offense over comments reportedly made by her manager while she was pregnant, about it being madness for having more children.
Case Background
The Claimant, Samina Ashraf, worked as a Deputy Quality, Patient Safety and Commissioning Manager at Health Education England (HEE), a non-departmental public body of the Department of Health and Social Care. Throughout her employment, Ms Ashraf had a considerably strained relationship with her manager, David Marston, who she believed consistently undermined her. Following a period of long-term sick leave, she issued an Employment Tribunal claim against her employer in July 2022, alleging harassment and discrimination on 33 separate occasions, many of which related to Mr Marston.
Claims
Ms Ashraf based her claims of harassment and direct discrimination on her being a Pakistani Muslim woman, which are protected characteristics under the Equality Act. In one of her allegations, she claimed being subjected to the comment “you are mad for having more kids” by her manager in 2019. Mr Marston accepted that he made a similar comment during a leaving speech for her on the day before her maternity leave, when he said that the idea of having more children “sounded like madness”. Describing this as “a bad joke at (his) own expense”, Mr Marston explained it was merely a light-hearted reference to the struggles shared by all parents, at a time when he was under the pressure of arranging childcare for his two young children. During the speech, he had also described Ms Ashraf as an excellent mother.
Legal Issues
Harassment is defined as unwanted conduct related to a relevant protected characteristic, that has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Importantly, this means harassment does not have to be carried out purposefully, the relevance is if it can cause distress to the recipient. However, if the unwanted conduct is unintentional, it must also be reasonable for the conduct to have such an offensive effect as defined above: actions must be more than merely trivial or frivolous in order to amount to harassment.
In assessing the merits of the case, the Tribunal assessed whether Ms Ashraf’s claim was supported by sufficient evidence to shift the burden of proof onto her employer. The Tribunal noted that her version of Mr Marston’s comment was unsupported by witnesses, and her claim was dependent on the effect the comment had upon her. This required consideration of the circumstances in which it was made, and the Tribunal determined that in the balance of probabilities, Mr Marston was giving a short speech to wish Ms Ashraf well on her maternity leave, while making a light-hearted remark about the pressures of arranging childcare. In these circumstances, there was no indication that his intention was to harass the Claimant, and no way he could reasonably have known that it would have such a distressing effect on her. It was therefore unreasonable for the Claimant to feel harassed. Though his comment was not the most successful attempt at office humour, his conduct was ultimately well-intended and objectively reasonable.
In light of the above finding, the Tribunal judged that Mr Marston’s conduct was not related to a relevant protected characteristic. It was essentially an innocent comment about the difficulties of being a working parent, which may be experienced by all parents regardless of race, religion or sex. This particular claim therefore failed in all aspects.
Conclusions
It is common for there to be work presentations or speeches when colleagues depart work for maternity leave or other reasons, on which occasions there may also be attempts at levity and humour. As a result, it is important for managers to use inclusive communication styles to reduce the risk of any misunderstanding among colleagues, which in turn may lead to ongoing resentment. In this case, the Claimant viewed her manager in a seriously negative light, which significantly influenced her perception of every interaction. Ms Ashraf’s other claims included Mr Marston denying her training, kicking her out of a meeting, and being aggressive about her holiday plans to Pakistan. Ultimately, all of her harassment and discrimination claims were dismissed by the Tribunal for lack of sufficient evidence or details.
Employers are strongly advised to foster an inclusive workplace culture. This includes encouraging open communication, promoting diversity, and ensuring that all employees feel respected and valued. This should be supported by clear policies and procedures, with effective methods for dealing with any concerns. Further training at all levels is crucial, to enable colleagues to identify instances of harassment or misconduct and report these appropriately without fear of negative consequences.
For further advice and assistance in relation to the topics in this article please contact us to speak to a member of our employment team.
