Davies v Remploy Ltd ET/2407487/09
Date added: 5 October 2010
disability discrimination | harassment
This case is a good reminder of the difference between remarks that constitute unlawful harassment, and mere offensive language.
If the tribunal had accepted the employer’s evidence in this case that Mr Davies called himself “Ironside”, his claim would have failed.
Employers must remember that an employee’s non-discriminatory offensive language will rarely be a bar to his or her claiming harassment.
Mr Davies worked as a full-time GMB union steward, but as an employee of Remploy, which provides employment and employment-related services for disabled people. He has mobility problems and is a wheelchair user. On 4 March 2009, the GMB sent a grievance to the company on Mr Davies’ behalf. The grievance alleged that Mr Davies had received evidence that Mr Wellens, a factory manager at the company’s Burnley site, had made insulting and offensive comments about Mr Davies’ disability.
The grievance alleged that Mr Wellens had, on several occasions, in Mr Davies’ absence referred to him as “Ironside”. This was in reference to a popular television series called “Ironside”, about a former police detective of the same name, who used a wheelchair after a sniper’s bullet paralysed him from the waist down. Mr Davies was shocked by Mr Wellens’ alleged comments, and later gave evidence that when he was young he felt bullied when people had called him “Ironside”.
A manager investigated Mr Davies’ grievance and upheld it, but found that there had been no deliberate intention on Mr Wellens’ part to insult or demean Mr Davies or his disability. Mr Davies received a copy of the investigation report, which found that he and Mr Wellens shared a large degree of antipathy towards each other, and that he had called Mr Wellens a “bastard” and said he would “rip his head off and shit down his throat”. Nonetheless, the grievance officer made a number of recommendations for the company, including that all employees be discouraged from referring to Mr Davies as “Ironside”.
Mr Davies’ appeal against the grievance outcome was upheld. The appeal officer found that Mr Wellens’ use of the nickname contravened the company’s bullying and harassment policy, and did cause offence to Mr Davies. He found that Mr Wellens was wrong not only to use the nickname, but also to condone its use at the Burnley site. A general manager apologised to Mr Davies on the company’s behalf, and the company took disciplinary action against Mr Wellens.
Mr Davies brought a claim of disability harassment. The company argued that Mr Davies regularly introduced himself as “Ironside”, and that his use of foul language regarding Mr Wellens meant that he could not have been genuinely offended by the use of the nickname. The tribunal disagreed. It found that Mr Davies did not call himself “Ironside”, and that the fact that a person uses offensive language generally does not mean that the person “cannot reasonably be offended by remarks relating to him and his disability”.
The tribunal held that Mr Wellens’ conduct had the effect of violating Mr Davies’ dignity, and upheld the claim. It awarded Mr Davies £6,000 compensation for injury to feelings.
- Get more information on disability discrimination in the XpertHR FAQs section:
- What is the new right to bring a claim for discrimination arising from disability under the Equality Act 2010?
- Under the Equality Act 2010, can an employee bring a claim for harassment where the unwanted conduct is not directed at him or her?
- If a third party harasses an employee, will his or her employer be liable for the third party's actions under the Equality Act 2010?