Logo v Payone GmbH and others
Logo v Payone and others [2024] EAT 9
Facts
Mr J Logo (the Claimant), a Black British individual, commenced employment with Payone GmbH (the First Respondent) on 16 November 2016. He brought numerous complaints to the Employment Tribunal (ET), but this appeal to the Employment Appeal Tribunal (EAT) concerned three specific complaints of harassment. The ET had dismissed the majority of his complaints, finding one harassment complaint not established and two others, which were substantiated, were out of time. The claim was presented to the ET on 16 March 2021.
The three complaints were:
The Black Face Incident (18 November 2016): At a Christmas party, a white colleague, Miss Ganswindt, attended dressed as a character from Sister Act using black face paint. The Claimant experienced immediate anxiety and a panic attack, feeling isolated as a new, only Black employee in a foreign country. Miss Ganswindt chose the costume before meeting the Claimant and was genuinely unaware of its offensive association for a Black British person.
Dinner Comment (19 June 2019): At a dinner, a former colleague, Mr Risch, made a "joke" in English and German involving a "black man fucking a rabbit". The Claimant was offended and felt demeaned. Mr Risch later recalled it as recounting a shocking story from his new employment involving adult material.
Pure Blond Advert on WhatsApp (19 December 2020): Mr S Schrader (the Second Respondent) posted a video advertisement for "Pure Blonde" beer in a work WhatsApp group. The advert depicted a "utopia of blonde people" who were later splattered with mud. The Claimant, a Black employee, was offended, interpreting it as promoting an "all-white utopia" and associating it with Nazi ideology of the 'pure Aryan race', especially as it was posted by a German colleague in a predominantly German group. Mr Schrader stated he found it humorous and would not have posted it if he had seen any potential for offense.
Held
Employment Tribunal (ET) Holdings:
Black Face Incident: The ET accepted the incident occurred and conceded by the respondent to be race-related harassment based on the unwanted conduct causing the harassing effect. However, the ET found it was out of time, presented nearly four years late. The ET did not find it "just and equitable" to extend time, citing prejudice to the respondent due to the colleague's adversely affected memory and no convincing explanation for the Claimant's delay.
Dinner Comment: The ET concluded that the shocking comment had the harassing effect, and the test for harassment was met, finding the comment "related to race". However, the ET determined this complaint was also out of time, approximately 18 months late. Similar to the first incident, the ET cited prejudice to the respondent due to memory issues and a lack of convincing explanation for the Claimant's delay.
Pure Blond Advert: The ET was unanimous that Mr Schrader's action did not have the purpose of creating the harassing effect. A majority of the ET found "no connection with race in this post whatever", considering it a straightforward play on words related to the beer's name. The ET was unanimous that it was "not reasonable for the post to be regarded as having the harassing effect".
Employment Appeal Tribunal (EAT) Holdings: The EAT found that the ET erred in law in its analysis of one harassment complaint and in holding that two other substantiated complaints were out of time.
Black Face Incident: The EAT found the ET erred in law in its time limit determination. It highlighted that the respondent had conceded the incident constituted harassment due to its effect, meaning the colleague's limited recollection caused no relevant prejudice to the respondent. The ET also failed to expressly identify and take into account the prejudice to the Claimant and wrongly sought an "objectively sound reason" or "convincing explanation" for the delay, which is not a requirement. The EAT found the ET's time analysis for this incident "perverse". This issue was remitted for redetermination.
Dinner Comment: The EAT concluded the ET erred in law regarding the time limit for essentially the same reasons as the black face incident. Mr Risch's memory difficulties were not materially prejudicial to the finding on "effect," and the ET again failed to expressly consider the prejudice to the Claimant and adopted an incorrect approach to the Claimant's delay. This issue was also remitted for redetermination.
Pure Blond Advert: The EAT found "compound errors" in the ET's analysis.
"Related to": The EAT stated the "only rational decision was that the conduct about which the claimant complained was related to race", and it was "perverse" for the majority of the ET to find no connection with race. The EAT emphasized the "risky form of wordplay" contrasting the beer's "pure" ingredients with the "purity" of the "toned blond white people" in the "utopia".
"Effect": The EAT found the ET focused on Mr Schrader's perception (humorous, no intent to offend) rather than on the Claimant's perception, which is required for the "effect" question. The ET "failed to take into account how the claimant felt as a Black person having the video sent to him... without any explanation". The EAT concluded that the decision in respect of the effect of the conduct "must be set aside". This "effect" issue and the time issue were remitted for redetermination. The "purpose" issue (whether Mr Schrader intended to harass) was not challenged and not remitted.
Comment
The EAT's judgment highlighted crucial legal principles regarding harassment under the Equality Act 2010. It clarified that the term "related to" a protected characteristic has a broad meaning and does not require a mental element or intent from the harasser, nor does the protected characteristic necessarily need to belong to the complainant. For assessing the "effect" of unwanted conduct, the ET must take into account the perception of the complainant (B). The EAT criticised the ET for failing to consider the Claimant's subjective perception and for suggesting his assumption of offense was "offensive".
Regarding time limits, the EAT reiterated that the ET has a wide discretion to extend time on "just and equitable" grounds. There is no strict requirement for a "good excuse" for delay, although reasons for delay are relevant. The EAT found the ET's approach to prejudice was flawed, as it focused on irrelevant prejudice to the respondent while failing to account for the clear prejudice to the Claimant in denying a remedy for proven harassment. The EAT found these errors in applying the time limit law to be "perverse" in this case.
The case underscores the importance of a thorough and legally sound analysis by Employment Tribunals in harassment claims, particularly concerning the interpretation of "related to" and "effect" in Section 26 EQA and the proper application of time limits. The specific issues identified were remitted back to the Employment Tribunal for redetermination.
