An employment tribunal has ruled that a “lighthearted” comment about a voodoo doll made by a colleague did not amount to racial or religious harassment against a Black Christian housing support officer.
In the case of Wint v. Walsall Metropolitan Borough Council, Mr Wint brought a claim of racial and religious discrimination after a colleague allegedly said: “I should have sent you a voodoo doll with pins in it”. The colleague contested this, stating that they had actually likened themselves to a voodoo doll due to exhaustion from covering Mr Wint’s night shift.
The tribunal first had to determine if voodooism qualified for protection as a religion under the Equality Act 2010. This unique situation led to the tribunal relying on two dictionaries and Wikipedia to inform their understanding of the voodoo religion due to a lack of an authoritative definition of what voodoo/voodooism is. Clearly this was not an ideal situation, but it underlines the potential breadth of religions and beliefs that may qualify for protection and the fact that it does not have to be widely known or understood.
There are five elements to the test that a religion or belief must meet to qualify for protection. They have become known collectively as the Grainger test, after the case in which the Employment Appeal Tribunal first set them out:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The tribunal concluded that voodooism met these criteria. It found, however, that voodoo dolls were not a true representation or manifestation of voodooism and were separate to the concept of voodoo.
Despite succeeding at that first hurdle, the tribunal found that no one, including Mr Wint, was genuinely offended at the time of the remark. The tribunal ultimately determined that the colleague was not targeting Mr Wint with the remark and Mr Wint only took offence after he discussed the incident with his family. Whilst it rejected the claim as a result, the tribunal criticised the Council for not taking Mr Wint’s complaint of racial abuse more seriously, noting that the Council had not formally investigated the alleged remark.
On reflection
This was a first instance decision, so it is not binding on future tribunals. However, as well as being the first case to identify voodoo as a protected religion in the UK, this case was unusual because none of the parties involved belonged to the religion under consideration. It is important to remember that an employee does not have to share a certain protected characteristic to feel harassed by, or bring a complaint for harassment relating to, comments or conduct related to that characteristic. In this case that meant that it could have been unlawful harassment to make comments relating to voodooism to Mr Wint (although he is a Christian), had the tribunal found that the comments genuinely violated his dignity or had the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
