Employee asked to stop flatulating loses disability-related harassment claim

In the recent case of Mr Tarique Mohammed v Crown Prosecution Service 3323914/2016 and others, Mr Mohammed, a barrister employed by the CPS, was unsuccessful in arguing that he had been discriminated against in relation to his disability when a colleague complained about an unfortunate side effect of his heart medication.

The Law

Mr Mohammed’s complaint, in relation to this specific incident, was one of disability-related harassment under section 26 of the Equality Act 2010.  

Section 26 provides that it is unlawful harassment if a person (A):

a) engages in unwanted conduct related to a relevant protected characteristic, and

b) the conduct has the purpose or effect of violating another (B)’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The focus of a harassment claim is on the effect of the conduct, not its purpose.  Therefore, lack of intent is not a defence to complaints of harassment.

In deciding whether conduct has the effect referred to, the tribunal must take into account:

a) the perception of B;

b) the other circumstances of the case;

c) whether it is reasonable for the conduct to have that effect.

The test is therefore both subjective (how B perceives the unwanted conduct) and objective (is it reasonable for the conduct to have that effect).   However, in essence, the tribunal is required to consider whether, if B has experienced those feelings or perceptions, it was reasonable for them to do so.  

The Facts

Mr Mohammed was a criminal barrister who was employed by the CPS as a Senior Crown Prosecutor.  He had been employed by the CPS since 2004.

In October 2014, Mr Mohammed had a heart attack and went on sick leave while recovering.   An Occupational Health Report was obtained, and it was concluded Mr Mohammed had a disability.  Mr Mohammed returned to work in March 2015 initially on reduced duties doing case studies.  He gradually returned to court duties but in May 2015 he suffered an angina attack due to work related stress.   He required surgery and had to take a further period of sick leave.   Following a further period of sickness absence he returned to work to an office-based role.  His line manager also changed.  

It appears that it was after the change of role and line manager that several incidents occurred, culminating in Mr Mohammed raising a formal grievance and subsequently bringing various complaints of disability discrimination.   One of the incidents that Mr Mohammed complained of was the incident mentioned above, which the tribunal politely referred to as the “quiet room conversation”.   

The office where Mr Mohammed worked was open plan but there was a small separate room within the larger office called the “quiet room” where another Senior Crown Prosecutor, Mr McGorry, worked.   In around February 2016, Mr Mohammed started to work in the quiet room too.  However, within two or three days of Mr Mohammed working in the room, Mr McGorry noticed that Mr Mohammed had flatulence.   Although Mr McGorry was aware that Mr Mohammed had suffered a heart attack, he was unaware of the medication he was taking or that a side effect of this medication was flatulence.

Following repeated incidents of flatulence in the quiet room, Mr McGorry turned to Mr Mohammed and said, ‘Do you have to do that Tarique?’   to which Mr Mohammed replied that it was due to his heart medication.  Mr McGorry asked if he could step outside to do it to which Mr Mohammed said that he could not. The conversation ended there and neither Mr McGorry nor Mr Mohammed mentioned the matter again.    

In fact, Mr Mohammed did not mention this incident again until he provided details of it in his claim form several months later, alleging that Mr McGorry’s comments amounted to disability-related harassment.  

Mr Mohammed brought a number of other disability discrimination claims against the CPS, many of which were ultimately successful.   His claim of disability-related harassment, however, was not.

The Decision

In considering whether the incident amounted to disability-related harassment, the tribunal went through each part of the statutory test under section 26 of the Equality Act 2010. The tribunal concluded that the exchange did amount to unwanted conduct.  It also concluded that the conduct related to disability because Mr Mohammed’s flatulence was a side effect of the medication, he was taking for his heart condition.   However, the tribunal decided that Mr McGorry’s questions were not asked with the purpose of violating Mr Mohammed’s dignity or creating such an environment.  The tribunal also concluded that the questions did not have that effect either, finding that although Mr Mohammed found the discussion embarrassing, he was not obviously upset and did not make any complaint about the incident prior to providing further particulars in the context of his tribunal claim.

The tribunal went on to say that even if Mr McGorry’s questions had had the required effect on Mr Mohammed, it would not have been reasonable for them to do so.  It was not, according to the tribunal, unreasonable to ask someone to stop flatulating, when there had been repeated incidents in a small office.  Further, it was a very brief one-off discussion, the questions were expressed in a neutral way and Mr McGorry did not discuss the matter again. In those circumstances, the tribunal held it was not reasonable for the discussion to have the effect of violating Mr Mohammed’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.   Accordingly, Mr Mohammed’s claim of disability-related harassment failed. 

Points to Note

  • Although the incident mentioned in this case may have caused a wry smile, there is a serious point to be made which is that it is quite easy to see how a situation like this can escalate if not handled sensitively and appropriately by the employer.  Luckily, the two individuals concerned were, it would appear, incredibly civil about the whole affair and, importantly (and to their credit), did not mention the matter again.
  • The majority of harassment claims involve unwanted harassment of employees by their colleagues.   An employer can be liable for harassment in these situations, whether or not the harassment is done with the employer’s knowledge or approval.   It is possible for an employer to defend a claim of harassment if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act.  This, however, is quite a high hurdle to overcome. 

Action to Take

  1. Ensure that you have clear, robust and up to date policies that make it clear what standards of behaviour are expected from employees and the potential consequences of breaching those standards.   Employers should have in place an equal opportunities policy and an anti-bullying and harassment policy, in addition to their grievance and disciplinary policies and procedures.  
  1. Make sure your staff are clear about what conduct can constitute bullying or harassment and that they know that this conduct is unacceptable and will not be tolerated. 
  1. Have a clear procedure in place for your staff to raise concerns and make certain that they are aware of this process. 
  1. Provide regular training to managers to enable them to deal with issues sensitively and appropriately and undertake fair and transparent grievance meetings and appeals.
  1. Carry out any investigations into suspected bullying or harassment thoroughly and promptly, ensuring that managers consider the intention of the conduct in question and also the perception of the person making the complaint. 

If you would like any advice in implementing any of these actions we are very happy to assist, please do not hesitate to contact me to discuss miranda@realemploymentlawadvice.co.uk

You can read the full details of the case here

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