Though the Pope may now have stepped down on health grounds, his name lives on in some surprising quarters, most recently the Employment Appeal Tribunal.
During the Pope’s visit to the UK in 2010, The Times newspaper was preparing a story about allegations that he had protected a paedophile priest. A Times editor, Mr Wilson, was up against a deadline for a piece on it. Being chased for the unforthcoming story and desperate to play the stereotypical newspaper editor to the full, Wilson shouted across the newsroom at no-one in particular “Can anyone tell what’s happened to the f……g Pope?”. Mr Heafield, a staunchly Catholic sub-editor, took a claim to the Employment Tribunal that this was harassment of him on religious grounds. This required him to show that Wilson’s demand was unwanted conduct on the grounds of religion which had the purpose or effect of creating a hostile, humiliating, degrading, intimidating or offensive work environment for him.
Heafield’s claim failed. Though Wilson’s conduct was indeed unwanted, it was clear to the Tribunal that there was no anti-Catholic sentiment or intention to offend behind the obscenity – it was just one of those words some people use when angry or to add emphasis or as a space-filler, like er or um or breathing in. Wilson could as easily have been irritated by something else, another story or his commute or some culinary misfire in The Times’ canteen, and used the same term as a result. Heafield’s argument was that “purpose or effect” meant that Wilson’s lack of intention was irrelevant – the effect was that Heafield was upset, and that should be the end of it.
The fact of his upset could not be denied, but the Tribunal took the unusual step of dismissing the claim nonetheless under Regulation 5(2) of the 2003 Employment Equality (Religion and Belief) Regulations (now the Equality Act 2010). This is the “get a life” (in religion cases, perhaps “get another life”?) defence available to employers when it is just not reasonable for a person to be upset by something. [It is also the provision hesitantly described in the original guidance to the 2003 Regulations as meaning that “an over-sensitive employee who takes offence unreasonably at a perfectly innocent remark will probably not be found to be harassed”. Probably?]
In reaching that view that it was not reasonable for Heafield to be upset, the Tribunal bore in mind Wilson’s evident lack of intention to offend. Heafield viewed this as an appealable error of law – the question of effect excluded consideration of intention, he said.
In a splendidly common-sense decision the Employment Appeal Tribunal rejected this. The effect which a remark could reasonably be said to have would obviously depend in part upon the intention behind it. The EAT quoted with approval an earlier case by the same Judge, where it said “When assessing the effect of a remark, the context in which it is given is always highly material. Everyday experience tells us that a humorous remark between friends may have a very different effect than exactly the same words spoken vindictively by a hostile speaker. It is not importing intent into the concept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable”. Brilliant.
In other words, though the Employment Judge would never put it this way, just get a grip on yourself and consider the context and the position of others before trotting off to the Tribunal with some gripe about crude but essentially ordinary language usage (especially as a one-off occurrence, as in this case). After all, if you are so upset by that sort of casual profanity as to need to seek compensation for it, how do you ever leave the house? More of the same, please, Tribunal.