Is it reasonable for an employee to feel offended if his name is confused with another’s, and if the cause of the confusion is “shared protected characteristics”? One of the tests for harassment is, after all, whether the effect of the conduct was to create an offensive environment
 
The Employment Judge thought so in Ujah v DWP: “there comes a point where it is reasonable to feel offended”, taking note of the occasions where Mr Ujah’s manager got his name wrong and should have taken steps not to avoid doing so again. 
 
However, the two lay members of the tribunal panel disagreed. They took the view that Mr Ujah should have accepted that slips of the tongue occur from time to time, particularly in the case of new employees, and that the manager meant no offence. 
 
This difference of opinion did not prevent the tribunal members unanimously concluding, after a 12 day trial, that none of Mr Ujah’s numerous complaints had been made out. It was observed that he saw much of life through the prism of race relations and discrimination. 
 
What made this otherwise unremarkable claim catch media attention? Apart from some evident illustrations of that prism, the decision addressed comments made by the manager about his own childhood suffering because of his ginger hair. Giving evidence, he denied that he had referred to Mr Ujah’s “people”, but agreed that he had drawn attention to his hair colour in the context of trying to show empathy with Mr Ujah. He knew about being targeted over a difference. 
 
The legal analysis was straightforward. The comment to Mr Ujah was unwanted. It related to race, given the overall context. But it did not violate dignity or create an offensive environment. It was an attempt to build bridges, not to cause offence. 
 
What can an employer do to minimise the risk of a similarly lengthy and expensive tribunal trial over a dispute of this kind? The days of “sticks and stones…” are evidently long gone. There may be little that can be done about oversensitive employees if they are determined to use available legal processes. There may be more that can be done about insensitive managers who ought to mend their ways. 
 
Other than to tread gingerly and hope others do so, we may be back on the option of well written policies, with an open door principle, so far as this may be feasible or affordable. And indeed well timed action where a grievance is brewing. This is where we can come in. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk . 
 
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