H was a Roman Catholic who worked for T when it was preparing a story about the Pope. In a panic to meet the deadline for publication, an editor (W) shouted to his colleagues in the newsroom: "Can anyone tell what's happening to the f**king Pope?" He then repeated the question more loudly. H was offended by the comments and subsequently brought a claim for harassment on the grounds of his religious belief pursuant to the Employment Equality (Religion or Belief) Regulations 2003 reg.5.

An ET held W had engaged in unwanted conduct but that to the extent that the conduct had the effect of violating H's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him, that was not a reasonable reaction under reg.5(2). It also found that it had not been proven that W's conduct was on the grounds of H's religion.

H appealed on the basis that by raising the issue of reasonableness, the tribunal inadmissibly introduced the question of W's purpose and had erroneously considered W's motive. The Application was rejected. The reaction of W was not an unreasonable reaction: a reasonable person would have understood and made allowance for it. It should have been clear that any offence was unintended. The context in which the phrase was used was relevant to its effect and it was not reasonable for H to be offended – this incident was exemplary of bad temper rather than an attack on Catholicism. It was entirely correct for the ET to consider the purpose of the remark when making this determination.

It was held that “sometimes an act complained of could only be shown to have been done on the proscribed ground by showing that the person doing it was motivated by the fact that the claimant had the protected characteristic”. However, that was not always the case and in this particular instance further analysis was superfluous. http://bit.ly/15h7bq1