In BDW Trading Limited v Kopec, K is Polish and heterosexual. K was racially abused by a delivery driver and later racially abused by another driver, who also made a homophobic abusive remark. K’s line manager acknowledged the rudeness of both drivers but blamed K for his manner and demeanour which she said did not help either situation. Because the manager felt K was not prepared to discuss his own shortcomings he was issued with a verbal warning. K subsequently resigned and a grievance complaining about his treatment was rejected. The ET upheld K’s harassment claims, but the EAT ruled that harassment could not be established against the employer just on the basis of its failure to take seriously and prevent the harassment that occurred. The ET had based its decision on direct discrimination law, by assessing how a comparator would have been treated and not the law relating to harassment. Under S.40 of the Equality Act 2010, an employer must not harass an employee within the meaning of S.26. Here the ET should have decided whether the employer, in handling the situation, had subjected K to harassment related to race and sexual orientation, but it had not done so, and the case would be remitted.
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