Laughing at someone falling over not harassment, rules tribunal

A tribunal has ruled that laughing at someone falling over is not harassment, after a pub worker lost a claim against his employer.

Kesarajith Perera brought the claim after he slipped on a patch of oil at his workplace, The George in Harrow, and was laughed at by his boss Hesham Badra. 

Perera was dismissed in October last year over an unrelated matter, but sued the pub’s owner, Stonegate Pub Company, for racial and religious harassment.  

He used Badra's response to his accident as evidence.  

Judge David Maxwell dismissed the claim, saying that someone falling over has a “slapstick element” likely to provoke laughter. 

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However, the tribunal did rule in Perera's favour regarding unlawful deductions of wages and awarded him £1,426.11. He was also awarded £908.91 for the pub’s “abysmal” paperwork after he was not given written particulars of employment. 

Caroline Yarrow, partner at law firm BDB Pitmans, said the key reason the claim failed was that there was no connection between the treatment Perera complained of and his race or religion.

Speaking to HR magazine, she said: “The case illustrates the importance of establishing – or indeed disproving – a connection between the relevant protected characteristic and the alleged harassing behaviour or conduct, as well as the effect it had on the recipient.” 

Yarrow warned HR all accusations of harassment should be investigated and addressed by employers, so that any decisions are not linked to allegations.

She said: “If decisions are made, which might be viewed as detrimental, about an employee who has previously raised allegations of harassment, employers must provide reasons for such decisions which do not link back to the prior allegations. 

“Failure to do so might end up in the matter being heard before an employment tribunal where the reasons for the decisions in question will likely come under significant scrutiny.” 

Daniel Zona, associate at Collyer Bristow said that employers must be able to distinguish between complaints of harassment under the Equality Act 2010, which naturally involve an element of discrimination, and general complaints of bullying which do not necessarily involve discrimination.  

Speaking to HR magazine, he said: “For the former, a complaint of harassment would also likely amount to a ‘Protected Act’ if it relates to discrimination.

“Therefore, even if a complaint of harassment is unfounded, as with Mr Perera, an employer could risk a further complaint of victimisation if they cause any detriment to the employee because of their complaint.” 

A spokesperson for Stonegate Group told HR magazine: “We welcome the common-sense decision made by Judge Maxwell in respect of this claim. Incidents happen in the workplace that might cause amusement to some team members all of the time. It is important that we continue to keep a sense of perspective, and not default to a position where the smallest things can be viewed as harassment.”