Gestures can count as discrimination

Many people think that a verbal element is required in discrimination – the use of offensive or derogatory terminology which displays the mindset and intention of the person doing the discrimination. However, a recent case has shown that it is possible for somebody to discriminate merely by using a particular gesture.

The claimant was a gay man who had been subject to months of abuse from a staff member at a local locksmith after he was involved in a minor altercation following a request for a refund on some locks that he had bought.

The claimant left the shop and the employee who had served him blew a sarcastic kiss at him. This was followed by about 20 similar mocking and – to the claimant – highly offensive and vulgar gestures when the claimant was passing the shop and the employee was on a cigarette break.

The reasons behind the employee’s behaviour were not revealed, but the claimant was left upset by it, suffering stress and a relapse of his depression.

He took legal action against the shop and successfully argued the firm had broken the terms of the Equality Act, which prevents retailers from discriminating against customers on grounds known as protected characteristics, which include race, religion and sexuality.

Even though the employee was on a cigarette break outside the shop when the gesturing took place, the concept of vicarious liability meant that in the eyes of the law, he was still deemed to be acting in the course of his employment and his employer was therefore liable for his behaviour.

The claimant was awarded £7500 compensation for the abuse, after a judge ruled the treatment was a violation of the 2010 Equality Act.

The case also shows that a person can continue to be discriminated against by a shop or other establishment after they have ceased to be a customer of that establishment.

What does the law say?

Under the Equality Act 2010, it is against the law to discriminate against anyone because of:

• age

• disability

• gender reassignment

• marriage and civil partnership

• pregnancy and maternity

• race

• religion or belief

• sex

• sexual orientation

Protection from discrimination applies in the following situations:

• at work

• in education

• as a consumer

• when using public services

• when buying or renting property

• as a member or guest of a private club or association

Implications

Gestures that are made to emphasise or punctuate conversation are commonplace but they can also accompany insulting or derogatory comments as well as standing alone as discriminatory behaviour as this case has shown. Indeed, in some cultures, a particular (and, to us, seemingly innocuous) gesture can be extremely offensive.

As the efforts to eliminate prejudiced and discriminatory language and behaviour have shown, words and gestures can sometimes be so frequently used that they seep into the collective culture of a society and people who use them may not even realise that they are doing so, or the effect that those words and gestures can cause. In fact, gestures are perhaps harder to control than words because of their spontaneous nature.

Nevertheless, efforts must be made to do so, because this case has shown that they can cause serious trouble for employers if they are allowed to continue.

As well as the gestures and non-verbal communication that this case highlighted, there may be other instance where no words are used but the intention to harass or discriminate is obviously clear.

What should employers do?

A review of the anti-harassment, bullying and discrimination policy/policies should be undertaken to ensure that mention is made in the definition of harassment and discrimination of non-verbal behaviour, including gestures.

Managers should be trained to look as well as listen for discriminatory behaviours. Pictorial examples should be included in the policy for illustrative purposes.

If an employee originates from another culture, research the gestures that may be considered offensive and institute awareness training for everyone to ensure that there are no misunderstandings.

As well as gestures, non-verbal sounds could also be considered harassment or discrimination – the wolf whistle, for example, could be considered sex discrimination.

Employers who make use of email or social media, which will include most if not all these days, may choose to include a section in their IT/social media policy about the sharing of offensive videos or pictures – this could include symbols and designs that could cause offence or upset.

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