Basile v Royal College of General Practitioners and others ET/2204568/10
Date added: 1 March 2012
sex discrimination | race discrimination | harassment | time limits
The employment tribunal in this case took the unusual step of upholding complaints of direct sex discrimination and sexual harassment in relation to events that had occurred up to three years out of time.
This case is a useful example of the wide variety of actions that can amount to harassment. Here, a man discriminated against another man with sexual comments and gestures, not all of which were directed at the claimant.
As in this case, it is possible for tribunals to find an employee personally liable for discrimination, along with his or her employer.
Employers warning employees about discriminating against colleagues (for example, in equal opportunities training) can use tribunals' willingness to find individuals jointly and severally liable with organisations for compensation as a deterrent.
Mr Basile, who is French, worked as a porter at the headquarters of the Royal College of General Practitioners from 2000 until his redundancy in 2010. A move to new headquarters resulted in 13 positions being put at risk of redundancy. The college chose to restructure, with six new posts being created. Existing staff were required to apply for these new positions, but had to compete with other internal and external applicants. Although Mr Basile applied for some of these jobs, he was not successful and was made redundant.
Mr Basile brought a claim for unfair dismissal in relation to the redundancy process. The tribunal found that the process used was "conscientiously managed" and "well thought out" and, although there were some errors, these were not sufficient to render Mr Basile's dismissal unfair.
However, Mr Basile also brought claims for race and sex discrimination in relation to harassment that he said that he had suffered throughout his employment. These were brought against the college and two colleagues, Mr Rogers and Mr Rayner. Mr Basile claimed that Mr Rogers, a manager with whom he had a strained relationship, had:
- along with others, called him "Basil Brush" and "Inspector Clouseau" or "Clouseau" and referred to him as "Basil from Fawlty Towers";
- asked him, in front of others, "how's it hanging?" (or variations on this such as "how's the cucumber?" or "how's the banana?");
- made "masturbatory hand gestures" and said to him "I sack you" when there was an argument over shift cover; and
- singled him out in a "vendetta" to get rid of him, for example by restricting his role and excluding him from social gatherings.
Mr Basile claimed that Mr Rayner had discriminated against him by:
- telling him off when he had eaten food that had been given to both of them, when they had agreed earlier to share it;
- warning him in a "needlessly intimidatory fashion" not to enter a restricted area when building work was taking place; and
- saying to him "right, got your brain, got your glasses on" at the start of a meeting held about redundancies.
The tribunal was satisfied that Mr Rayner had not discriminated against Mr Basile. It found that any alleged comments were either not in fact made or, if they were said, made in Mr Rayner's usual conversational or flippant manner.
The tribunal found that some of the race discrimination allegations made against Mr Rogers were true. It decided that, from around 2000 to 2004, Mr Basile had been called "Inspector Clouseau" by some employees, including Mr Rogers. Although there may have been other reasons that had nothing to do with race why Mr Basile was called this, the choice of nickname was materially influenced by Mr Basile's being French. The character is a "British comic creation of a stereotypically bumbling French character". It was reasonable for Mr Basile to view this nickname as creating a humiliating environment for him and its use fell within the concept of harassment under race discrimination law.
The tribunal went on to find that some of the sex discrimination allegations were also made out. It found that Mr Basile had, on occasion, been greeted by Mr Rogers with a "how's it hanging?" greeting and had been witness to Mr Rogers' sexual hand gestures, although this did not happen after 2007. The tribunal did not accept the argument that Mr Basile, as a man, could not find these gestures disturbing. According to the tribunal, Mr Basile had found the gestures "distressing" and they had created an "offensive environment" for him. However, the tribunal found that Mr Rogers' other actions against Mr Basile, while sometimes unsympathetic and hostile, did not amount to discrimination.
The tribunal concluded by considering whether or not to allow the claims, which would normally have been out of time (with discrimination claims normally having to be brought within three months of the date of the act complained of). The tribunal decided that the claim of race discrimination over the use of the nickname "Inspector Clouseau" could not succeed because it was out of time. It had occurred at least five years before the end of Mr Basile's employment and he had not complained formally while still in employment. The tribunal rejected Mr Basile's argument that the various acts of race and sex discrimination formed part of a single act extending over a period of time. The tribunal doubted that it is legally possible for unlawful treatment under different statutes (here, the Race Discrimination Act 1976 and Sex Discrimination Act 1975) together to form a single act for these purposes.
However, the tribunal upheld the complaint of sex discrimination, even though it was made out of time. Mr Rogers, who was a manager, had habitually made sexual gestures, which, together with the "how's it hanging?" greeting, caused Mr Basile's distress. He had complained informally, but had been reluctant to make a formal complaint because of his strained past history with Mr Rogers. This tipped the balance in Mr Basile's favour to allow his claim even though it was out of time, and the college and Mr Rogers were found jointly liable for sex discrimination.