In Heafield v Times Newspaper Ltd [2012] UKEAT/1305/12/BA, Mr Heafield ("Claimant"), a practising Roman Catholic, worked as a sub-contractor for the Times newspaper at the time when the Pope was visiting London in 2010. The Times was due to run a story relating to allegations that the Pope had protected a paedophile priest before he took papal office. The story was simply referred to in the newsroom as "the Pope". An editor, close to the imminent deadline for publishing the story, shouted across the newsroom "can anyone tell me what's happening to the f***ing Pope?" The Claimant later complained to the Respondent about the editor's conduct and subsequently made claims of harassment and victimisation in the Employment Tribunal.

The Tribunal examined carefully the context in which the editor's words were spoken and accepted that there was unwanted conduct (as required by the harassment legislation) because the Claimant was genuinely upset by the words used by the editor. However, the Tribunal couldn't find any evidence that the purpose of the words was to violate Mr Heafield's dignity. The editor swore because he was under pressure. The tribunal concluded that it was unreasonable to consider a mere enquiry after a piece of work as insulting a religion. The EAT agreed and commented that, in an ideal world, the editor should not have used an expletive but that people sometimes use bad language without thought and that a reasonable person would make allowances for that.

Key take-aways from this decision:

  • Employees must show that it was reasonable for them to be offended by other party's conduct (unless the other party's conduct had the purpose of offending the Claimant). This means that if the conduct complained of is quite clearly trivial and unintentional, an employment tribunal is likely to take the view that the harassment claim should fail;
  • This is a welcome decision for those who employ staff in high octane environments where swearing is part of the vernacular, provided that there's no evidence to suggest the purpose of the swearing is to violate others' dignity; and
  • The context of the alleged harassment is all-important.

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