If a white employee makes racist comments in the presence of other white employees only, could this be regarded as racial harassment?
Section 26 of the Equality Act 2010 provides that unlawful harassment occurs where a person engages in unwanted conduct related to a relevant protected characteristic, such as race, that has the purpose or effect of violating another person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person. There is no requirement that the harassment be on the grounds of the race or ethnic or national origins of the employee making the complaint. A white employee could be racially harassed where another white employee makes racist comments in their presence, provided that the conduct is unwanted and it has the purpose or effect of violating their dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
However, this test is not wholly subjective and conduct will not be treated as violating an employee's dignity just because they say it does. Conduct shall be regarded as having this effect only if, having regard to all the circumstances, it should reasonably be considered as having that effect. Having said that, an employment tribunal is obliged to take the employee's perception into account, when making that assessment.