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In this case Miss Tunstall was Polish and worked as a paralegal for Quality Solicitors. She overheard a colleague saying to a client that "She is Polish and very nice" or "She is Polish but very nice". The Tribunal in the first instance held that it did not matter which word had been used and whilst this was an isolated incident, the comment was unwanted conduct which constituted unlawful harassment of the claimant.

On appeal, the EAT held that the Employment Tribunal erred in law as it had not considered whether the comment had violated her dignity or created a hostile environment for her, as the law requires, nor whether it was reasonable for the remark to have such an effect if it did. In a surprisingly robust finding, the EAT went on to find that whichever remark was made it could not have violated her dignity or created a hostile environment.

Employees are often quick to complain that they are being harassed and it is vital that employers bear the statutory definition and test relating to harassment in mind. When issuing an outcome to a grievance, employers can rely on the statutory wording to assist to reach a finding as to whether or not the comments or conduct amounts to harassment. We recommend doing so and will assist clients in drafting the outcome letter.

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