You have a longstanding relationship with a certain colleague. You’ve done business together for years. But then disagreements begin. You no longer want him working for the business as much. Whether justifiably or just disgruntled, he accuses the business of disintegrating.

That really rankles. You know he’s to blame. So you strike back, thinking of some characteristics that might help you to put this guy down. As it’s around Christmas, you accuse him of being a hypocritical Christian and a bitter old man. You copy other colleagues into this email.

You didn’t actually believe any of that. It was just revenge for his accusation. But your colleague, understandably, was offended. Is this discrimination?

Yes, it is. This is a shortened version, modified a little to highlight the issues, of the case to which I’ve linked. In that example, the perpetrator was the senior partner of a law firm, and at the employment tribunal he accepted that his comments could be seen as humiliating. Conduct will be classed as harassment under the Equality Act 2010 if it violates the victim’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person, and is on the grounds of a “protected characteristic”, such as age or religion. It is quite clear that the comments amount to unlawful harassment.

But how bad is it? Well here, at first sight the two judicial bodies considering the matter seem to have disagreed. The colleague presented a claim for discrimination at an employment tribunal, which is the body that determines such claims and has the power to order compensation to be paid by the perpetrator to the claimant. The tribunal awarded £18,509 in compensation for injury to feelings. Only the most serious types of harassment, generally matters considered to be campaigns of harassment, merit such awards.

The matter then went to the Solicitors’ Disciplinary Tribunal (SDT) to consider action against the perpetrator. The SDT found that his motivation was “anger” and he didn’t intend to discriminate against the victim, so they made what they call a small fine, of £2,000.

First, I don’t think the SDT meant that the solicitor actually had to intend to contravene the Equality Act 2010 to deserve harsh punishment; had they considered his views contemptible, intention to contravene the legislation would have been irrelevant. But they found he was motivated by anger, implying that the choice of insults was somewhat arbitrary. Furthermore, he’d “apologised unreservedly”. Don’t forget, however, that the SDT also ordered him to pay half of the Solicitors’ Regulation Authority’s costs of £32,000.

This case shows that the approach of the SDT and the employment tribunal might differ significantly. As the SDT noted, the employment tribunal assessed the harm that had been caused. Harm can be caused unintentionally. The SDT, on the other hand, were purely concerned with the perpetrator’s culpability.

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