Farting Barrister: Addressing Flatulence in the Workplace
| Case Ref: | 3323914/2016, 3325340/2017 and 3327768/2017 |
| Case Name: | Mr T Mohammed v Crown Prosecution Service |
| Relates to: | Disability Discrimination |
| Decision: | Claims of failure to make reasonable adjustments and discrimination arising from disability in two respects succeed. Claims of victimisation, harassment and further direct and indirect disability discrimination fail. |
| Award: | £TBC |
In a case widely reported in the media (for example: The Guardian), a senior barrister has lost his case for disability discrimination against the Crown Prosecution Service for repeatedly farting in a small office.
Tarique Mohammed did not dispute the allegation regarding excessive flatulence, but claimed that it was a side-effect he was taking for heart medication, having previously suffered a heart attack.
He began sharing a small room with another colleague in around 2015 or 2016, and within a few days the colleague realised that he suffered from flatulence. This colleague knew Mr Mohammed had suffered a heart attack, but not the details regarding any medication or side effects of this.
On one occasion, this colleague asked whether Mr Mohammed had to do this, and he responded by explaining it was a side effect of the medication. He was then asked whether he could step outside to do it, and bluntly responded no. That was the end of the conversation, and nothing further was mentioned or reported until much later.
Mr Mohammed alleged that he found the question, addressing flatulence in the workplace, embarrassing, and brought a claim that the comments from the colleague amounted to disability discrimination, and specifically harassment, because it violated his dignity, one of the possible legal ways of claiming harassment.
Reading Employment Tribunal disagreed. Following the letter of the law closely, they accepted that the first part of the test – that the comment had been unwanted and was related to disability – was met. They disagreed however that the second part of the test, that the comment had violated Mr Mohammed’s dignity had been engaged.
They accepted Mr Mohammed had found it embarrassing, but that was not sufficient to found a claim of harassment. The law focuses on the effect of the conduct and not the intention, and it was therefore technically irrelevant that the colleague did not know at the time that the flatulence was related to an underlying health condition and disability.
However, in considering whether it was reasonable for conduct to have the effect of violating dignity, the tribunal noted, there is a subjective and an objective test, but the latter dominates. It was therefore relevant then that the colleague did not know the flatulence was disability related, and it was also relevant that this was a reasonable comment to make in the context of sharing a small office in all the circumstances.
The tribunal concluded that the comment did not violate Mr Mohammed’s dignity, but that even if it had, it was not reasonable for it to have that effect.
Contrary to how this has been reported (Express.co.uk), Mr Mohammed’s claim was not about the flatulence per se, but about the comment regarding the flatulence, and whether that comment met the legal threshold for harassment.
Mr Mohammed did not bring any claim alleging that he had a “right to fart”, due to his disability or otherwise.
This was also a small part of a long and complex claim, in which Mr Mohammed raised a variety of complaints, many of which were lost, but several disability discrimination complaints were, unusually, conceded by his employer.
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