There are several notable employment law cases which deal with whether or not a single remark can constitute dismissal. In Richmond Pharmacology v Dhaliwal  UKEAT it was held that a remark made to a Claimant about the possibility of her being “married off in India” was capable of violating her dignity and did constitute harassment for the purposes of the discrimination legislation.
What an Employment Tribunal has to do when faced with questions of this nature is consider whether the remark genuinely has the purpose or effect of violating a person’s dignity.
Section 26(4) of the Equality Act sets out what must be taken into account:
(a) the perception of the Claimant
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
The speed with which an employee complains might have some bearing on this decision. Clearly if an employee complains immediately then this will appear more like genuine offence has occurred than if they raise the comment during the course of a disciplinary procedure two months later.
In another case, Dos Santos v Preview Services Ltd a Claimant asked a colleague for an envelope by saying, “Can I ask you a favour?” to which the colleague replied, “As long as it’s not a sexual favour”. The tribunal decided that this did not amount to harassment but did state that it thought that the comment was “unwise”.
It seems that the context of the remark is as relevant as the remark itself when tribunals decide what constitutes harassment.
Further Information on Gross Misconduct
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.