In the case of Khan v Adidas UK Ltd ET/3201318/15 an Employment Tribunal found that potentially offensive remarks made by a colleague did not constitute harassment because the remarks had to be placed in the context that they were made in; doing so meant that the remarks were rendered ‘harmless’.
Mr Khan worked as a sales assistant in the Adidas store in Stratford from December 2012 until his dismissal on 7 July 2015.
In September and October 2014 Mr Khan raised a number of complaints regarding allegations of bullying, harassment and victimisation by colleagues. An investigation was undertaken in which Mr Cooke (Vice President of HR for North Europe) interviewed Mr Khan’s colleagues. A grievance hearing and appeal were held and Mr Khan’s complaints were rejected. However, Mr Cooke found that a number of serious allegations were made by the workers that he had interviewed regarding aggressive conduct and inappropriate comments on Mr Khan’s part.
An investigation was commenced into the allegations made regarding Mr Khan’s behaviour and there was found to be a case to answer. Mr Khan was subsequently dismissed on 7 July 2016 on the strength of a number of allegations, including of inappropriate sexual and/or offensive remarks that he had made to a female colleague, antagonistic and provocative conduct towards colleagues, and a breach of confidentiality.
As part of his appeal Mr Khan sought transcripts of the interviews that Mr Cooke had conduct ed with his colleagues. Mr Khan was given the transcripts and complained that the following comments made by a colleague of Mr Khan’s, Ms Baida, constituted harassment on the grounds of age and religion:
- That Ms Baida had stated that she thought that an explanation for Mr Khan’s behaviour towards his female colleagues was that “he’s from a Muslim country, so where women get treated badly”
- That Ms Baida thought Mr Khan viewed himself as the “king” of the store and that, in response to a question as to whether she thought he could change his ways, Ms Baida stated that “you can’t make a dog’s tail straight” (i.e. that she thought he could not change).
The transcript of the interview with Mr Baida showed that she was led to believe that the interview was private and confidential.
Mr Khan subsequently brought Employment Tribunal claims for harassment on the grounds of age (the comment regarding the “dog’s tail”) and religion (Ms Baida’s comment regarding Mr Khan being from a Muslim country).
The Employment Tribunal ruled against Mr Khan in relation to his claims for his harassment on the grounds of race and religion, finding that:
- The comment “you can’t teach an old dog new tricks” was not related to Mr Khan’s age in the context in which it was used – the remark was made to indicate that Ms Baida did not believe that Mr Khan would change his behaviour and was a translation from a similar (although not exact) expression in Ms Baida’s native tongue
- The comment “I think because he’s from a Muslim country, so where women get treated badly” was capable of being offensive (being negative stereotyping) but that context in this situation – the comment was not made to Mr Khan but in meeting that Ms Baida had thought was confidential. Further, the Tribunal accepted that Ms Baida did not have the intention of offending Mr Khan or any other third party by her comment and it was based upon her particular experience of the Muslim community in which she had grown up.
Chris Hadrill, a specialist employment solicitor at Redmans, commented on this case: “This is an interesting and rather unique set of circumstances which has produced a rather unique outcome – what is important in this case is that the Tribunal must take into account the contexts of comments that could potentially constitute harassment when deciding whether a claim is made.”