'Slapstick' | Employee's laughter at colleague who fell over was not harassment, says judge

Employee's laughter at colleague who fell over was not harassment, says judge

A pub worker tried to sue their former employer after a colleague laughed at them when they fell over at work.

Kesarajith Perera took former employer Stonegate Pub Company to an employment tribunal with allegations of racial and religious harassment. And to back up his claims, he gave evidence of an incident where he slipped on a pool of oil while working at The George in Harrow in 2020, causing him to fall down and resulting in chuckles from team leader Thameera Bandara.

Perera was sacked from his position at the pub last October after failing to provide proof of his right to work in the UK.

Following his dismissal, Perera launched a tribunal appeal process with claims of race and religious harassment. He provided many examples of incidents in the workplace that constituted this harassment, the standout of which was Bandara’s reaction to his fall – even claiming that Bandara had deliberately put oil on the floor to cause him to fall.

This notion was described by the employment judge as “a ridiculous one... without any evidence whatsoever”.

However, the panel dismissed the claims, stating that Perera’s treatment had “nothing whatsoever to do with [his] race or religion” and that the “slapstick element” of a fall would naturally prompt laughter.

David Maxwell, the employment judge who presided over the case, said: "Whilst it might be tempting to hope that one colleague would only ever react in a sympathetic way towards the misfortune of another, common experience suggests this is not always the case.”

He added: “Unfortunately, it appears to us, [Perera] has a tendency to jump to conclusions when he encounters misfortune.

“Furthermore, [Perera's] allegation was undermined by his own evidence, which was to the effect that the location where he fell was one prone to spillages."

The panel concluded that the actions had nothing to do with Perera's race or religion.

Judge Maxwell concluded: "None of the treatment complained of had the proscribed purpose or effect.

"The conduct itself, objectively, came nowhere near having the proscribed effect, and his view of matters was unreasonable."

Race and religion in the workplace

While the employment tribunal found zero evidence of racial or religious harassment, the case provides an opportunity to highlight what actually constitutes these forms of discrimination in the workplace.

Despite an increase in conversations around racism, the research reveals that employees are still not comfortable having discussions around race at work. In 2021, the average comfort level was only 59/100 - a number that barely changed since 2018.

Perceptions of racism in the workplace also barely changed between 2018 and 2021. Last year, 88% of employees believed racism existed in their workplace, only rising by 2% from 2018 (86%).

Employee Engagement Checklist and Calendar

Employee Engagement Checklist and Calendar

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The lack of progress becomes more concerning, however, when we look at the number of respondents that see racism as an issue. Three quarters (75%) of employees considered racism to be a problem in 2021 - again, a minor shift from 73% in 2018.

“We’ve not seen enough change since our previous research in 2018, despite the global conversations that have taken place since 2020. We are still as wary, if not apprehensive, about conversations around race as we ever were,” said Binna Kandola, OBE, Business Psychologist and Co-Founder, Pearn Kandola.

“If we are to make progress on race, it will be achieved by discussion. It’s time for us all to take a good, hard look at how we perceive racism at work, as well as inclusion as a whole, to ensure we are able to talk to one another in an environment of mutual respect.”

The law

The Equality Act 2010 mandates that no one should be discriminated against because of their race, but there is far more beyond legal parameters that HR must consider when it comes to discrimination and bias in the workplace.

As with discussions around racism, more needs to be done when it comes to taking action against racism at work. Worryingly, half of respondents reported that their organisation was not doing anything to promote racial equality in the workplace in 2021.

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This lack of action is evident in the way employees respond to racism in the workplace. While 52% witnessed someone being racist in work last year, over a quarter (28%) took no action, with the most cited action being “I feared the consequences”. In addition, almost a third (31%) of white respondents selected “It wasn’t my business” as a reason for not taking action - rising by nearly 20% since 2018.

Kandola commented: “The fear of getting it wrong is hindering the fight against racism. We’re still seeing concerns in the workplace around how to challenge racist behaviour constructively and how colleagues will respond if challenged. Despite everything that has happened in the world over the past two years, we have a long way to go in making race a topic that is able to be discussed openly and empathetically.”

The action

Of the employees that said their organisation was actively promoting racial equality, education was the most frequently cited action.

Educational activities included: workshops, seminars and talks, and learning, training and development courses. Championing equality in the workplace, culture and communication, and changing internal policies and practices were also underlined as actions being rolled out in the workplace to promote racial equality.

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“Education is a good place to start, but for organisations to create truly inclusive workplaces, we need to listen to the experiences of employees and implement actionable solutions,” said Kandola.

“This can include: recognising different experiences between racial groups, as well as differences within racial groups; skill development in creating environments of psychological safety; and having a clear dignity and respect at work policy. Ultimately, challenging racism is everyone’s business.”

Promoting religious inclusivity

There are also a number of actionable steps that organisations can take to promote greater religious inclusivity and normalise discussions around religion in the workplace. Raising awareness around different religious beliefs through events or company-wide initiatives was cited as a way for organisations to help improve understanding and ensure that inclusion is embraced at all levels.

Participants also felt that business leaders could develop policies with clear guidance around religious expression in the workplace, including adjustments to allow flexible working hours and provide prayer facilities. To ensure these policies are fair, they must take into account the needs of all religious groups and must be fully understood and championed by managers.

Kandola said: “Leaders need to set an example when it comes to challenging stereotypical attitudes and be open to being challenged. Having open dialogues on religion, conducted in an atmosphere which fosters trust, safety and respect, will help organisations to build an inclusive workplace culture and ensure the right support is there for employees of all faiths.”

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