Race discrimination

Royal Mail Group v Efobi – Discrimination: burden of proof

Summary

The initial burden of proof in discrimination claims lies with the claimant, who is to present evidence of any alleged wrongdoings. Only then will the respondent be required to provide an explanation for any alleged discrimination.

Law

The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of 'race'.

Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’, whether or not the employer knows about or approves of those acts. However, employers can defend a claim by showing that they took all reasonable steps to prevent their employees from acting unlawfully. Employees are also personally liable for their own unlawful acts where the employer is liable because they were committed during the course of employment.

If there are facts from which a tribunal could decide that an employer has committed an unlawful act, then the tribunal must hold (in the absence of any other explanation) that a contravention of the Equality Act 2010 has occurred, unless the employer can show it did not contravene the provision in question.

In practice this means the claimant initially has to produce evidence which demonstrates to a high degree of probability that discrimination has occurred. If the claimant establishes a case which at first sight indicates that discrimination could have occurred, then the ‘burden of proof’ switches to the employer, which then has to show a non-discriminatory reason for its actions. This portion of the law was contested in this case.

Facts

The claimant in this case worked as a postman. He made over 20 unsuccessful applications for IT-related jobs with his employer and claimed his rejections were because he was of Nigerian descent.

He also alleged that a number of the employer’s other actions towards him – refusing to allow him to finish his shift in time to attend a wedding, filming him covertly in order to gather evidence for disciplinary proceedings, and suspending him from driving duties – amounted to discrimination and harassment on the grounds of race.

Employment Tribunal (ET)

The Employment Tribunal (ET) upheld the claim of harassment after the employer refused to allow the claimant’s shift to finish on time to attend a wedding. They also upheld a separate claim for victimisation, after the claimant suffered a detriment following the submission of his discrimination claim.

However, they dismissed all claims of discrimination relating to Efobi’s job applications being refused, as the claimant could not clearly evidence that these rejections were due to his race. He appealed.

Employment Appeals Tribunal (EAT)

The EAT decided the Equality Act 2010 did not require claimants to present a case against an employer from which, on the face of it, it could be concluded that there was a case to answer on discrimination.

Instead they expressed the opinion that it was for tribunals to decide from all the facts of the case and “in the absence of any other explanation" that a person has contravened the provision concerned.

They decided the ET erred in placing a ‘burden of proof’ on Efobi to prove he suffered discrimination, whilst also being unable to assess all the facts after failing to hear the respondent’s explanation of the claimant’s allegations.

Court of Appeal (COA)

The Court of Appeal overturned the ruling of the EAT and, in citing the decision of Ayodele v Citylink Ltd [2017], confirmed the original ET did not err by applying a two stage burden of proof test for assessing claims of discrimination.

The COA highlighted that employers will only be required to provide an explanation of any alleged discrimination providing the claimant can present evidence which leads the tribunal to conclude, on the balance or probabilities and absent any explanation, that discrimination has occurred.

It was ruled that the claimant failed to provide sufficient proof of discrimination as, although there was a suggestion of discriminatory workplace culture highlighted in successful harassment and victimisation claims, he could not present a prima facie case that his job applications were rejected due to his race.

Supreme Court

At his appeal to the Supreme Court, the claimant argued that the law had not been applied correctly by the lower courts, stating that the law does not put the burden of proof on claimants. The claimant’s argument was on the basis that the law had changed when the Equality Act 2010 replaced the Race Relations Act 1976.

The Supreme Court held that although the wording surrounding burden of proof changed when the Equality Act 2010 was introduced, the law has not changed and claimants are still obligated to provide proof of discrimination when bringing a claim to an employment tribunal.

The Court relied on the explanatory notes which accompany the Equality Act 2020, which states that “in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant”.

Note for employers

Although the Employment Appeal Tribunal found that the Equality Act 2010 did not require claimants to present a case against an employer from which it could be concluded that there was a case to answer on discrimination, the Supreme Court decision reaffirms the initial burden of proof in a discrimination claim is placed on the claimant. The claimant has to first persuade a tribunal that, on the balance of probabilities, discrimination is likely to have occurred before the respondent will be asked to give their explanation.

The decision of the Supreme Court cannot be appealed any further. This means therefore that this is now settled law, and employers should consider what precaution they can put in place should they come to have to defend themselves. Employers should keep in mind that when making recruitment decisions, it is key that they make notes of the reasons for any decisions made, ensuring they record that only objective factors were taken into account. This is especially important for internal applicants who may raise future complaints against rejections.

Patel v Commissioners of the Police of the Metropolis - Discrimination

Summary

The Employment Appeal Tribunal has ruled that a tribunal proceeded on a false basis by not requiring the disclosure of documents relating to the refusal of an employment opportunity due to potentially racist reasons.

Under the Equality Act 2010, organisations are prohibited from discriminating against individuals on the basis of their race and religion. This includes denying them opportunity for promotion or new roles.

During employment tribunal proceedings, a preliminary hearing may be held before the full hearing in order to discuss particulars involving the case, such as the disclosure of evidence.

Facts

The claimant worked as a police officer in a command unit, which specialised in dealing with counter-terrorism. He was Asian, maintained the Hindu religion and was a longstanding member of a temple, in which he also volunteered within as Deputy Manager. The police were fully aware of this and had not expressed any concern up to this point.

The claimant asked to be transferred to the borough in which the temple was based in order to lesson his commute and allow him to make better use of his language skills with the local population. He had a meeting with a Chief Inspector, who expressed in an email to a third party concerns over the claimant’s ongoing relationship with the temple and how it could potentially cause issues with the question of his impartiality if he conducted his duties in the local area.

The claimant resigned his position with the temple and informed the Chief Inspector, however the concerns of the Chief Inspector were later confirmed in a letter addressed to the claimant. He therefore commenced proceedings with the employment tribunal (ET) for discrimination, claiming he was being denied the transfer on the basis of his race and/or religion.

In the intermittent time, about a year later, the claimant was informed by a separate Chief Inspector that he was now able to apply for the transfer. Crucially, the Chief Inspector outlined that the command unit still expressed concern over his ties to the temple, and had written confirmation outlining this, but as circumstances had now changed there was no longer a conflict of interest.

The claimant argued to have this ‘written confirmation’ included in the evidence considered by the tribunal in his ongoing discrimination claim, as he felt it would be relevant. The respondent refused to disclose them, meaning the matter was put before the tribunal.

ET

In a preliminary hearing, the tribunal refused the claimant’s request for the disclosure of information. They ruled that it was unlikely that the new evidence would make any difference to his claim as this second decision had been made about a year after the first by different people, and in different circumstances.

Ultimately, the time it would take to gather this information and conduct further investigation did not, to the tribunal, seem worthwhile to this present case. The claimant appealed.

EAT

The EAT found that the claimant’s argument had some merit and therefore remitted the issue, of whether this new evidence should be disclosed and later considered in a full hearing, back to the tribunal.

The EAT found that the tribunal had based their original decision on this disclosure on a factual error; mainly that there had been a complete change of circumstances. The EAT questioned this, outlining that on the basis of the facts a different Chief Inspector had made a favourable decision apparently on the basis of the same material used to make the original decision.

Circumstances had also not changed as the original Chief Inspector had decided there had been a conflict despite knowing the claimant was no longer volunteering at the local temple; the claimant had already cut the ties in which the police claimed had caused such a conflict when he had been refused at the first instance.

The EAT went on to explain that, bearing in mind the difficulties in proving religious and race discrimination, it could be that this new material should be presented before a tribunal. However, they also recognised that, upon further consideration of the facts, the tribunal could still determine the new evidence was not relevant. Either way, the tribunal should be invited to consider this issue again.

Note for employers

This is an ongoing case and it is yet to be confirmed what the final ruling of the tribunal will be. However, it suggests that subsequent events that relate to an ongoing discrimination claim may also be considered by tribunals in certain situations. To this end, it is crucial that organisations seek to avoid making discriminatory decisions and, in situations where a decision could be considered discriminatory, clearly outline why it has been made.

As seen here, the police’s argument may fail on the basis that they may not have clear written confirmation as to why the claimant’s position created the conflict of interest that they deemed so severe as to deny him this opportunity, and therefore be instead found to relate to his protected characteristics.

Court

Employment Appeal Tribunal

Base Childrenswear Ltd v Otshudi - Race discrimination: injury to feelings

Summary

The Employment Appeal Tribunal (EAT) has ruled that a one-off act of discrimination does not limit tribunals to making an award in the lower Vento band for injury to feelings compensation.

In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in Vento set out three bands to be used when assessing injury to feelings:

less serious cases, such as a one off event that was not extremely serious
serious cases, such as ongoing discrimination
very severe cases, such as prolonged discrimination or repeated harassment over a period of time.

Compensation for discrimination claims remain unlimited and tribunals can award more than the upper limit provided in the Vento bands in exceptional cases. For more information surrounding current Vento band rates, please refer to the ‘Remedies’ section of our race discrimination overview.

The Acas Code of Practice on Disciplinary and Grievance Procedures provides practical guidance and sets out principles for handling grievances in the workplace. A failure to follow the code's recommendations will not, on its own, make an organisation liable to legal proceedings. Tribunals will, however, take the code into account when considering relevant cases.

Facts

This case concerned an employee who was dismissed after three months of employment. In a meeting with two other members of the management team, the organisation’s managing director attempted to outline that this was due to her being made redundant, something that he would later admit to the employment tribunal (ET) was untrue. Immediately seeing through this, the employee questioned why she was being dismissed and if it was to do with her race. The managing director challenged her to claim this was a case of discrimination. He then told her to leave immediately.

The employee submitted a letter of grievance and an appeal against her dismissal but these were not responded to. She later brought numerous claims to the employment tribunal, including that she had been subjected to racial harassment during her dismissal.

ET

The ET dismissed most of her claims as they were brought out of time, however, they did uphold her further complaint of racial harassment in respect of her dismissal.

The ET reasoned it was very clear that the employee had been aware she was the victim of wrongdoing and that she was being placed under pressure not to question it. They also called into question the subsequent actions of the organisation following the bringing of her claim as they had admitted to lying about the redundancy and later tried to outline that they suspected her of theft, something that the ET viewed with ‘considerable scepticism.’ They were therefore satisfied that her dismissal amounted to unwanted conduct, was intimidating and a violation of her dignity.

At a later remedy hearing, the tribunal awarded the following to the employee:

injury to feelings compensation of £16,000, which fell in the middle Vento band
aggravated damages of £5,000 due to the organisation’s failure to respond to her grievance or appeal, their lies in regard to the false redundancy and unsubstantiated accusation of theft, and their failure to apologise
personal injury award of £3,000 due to the employee’s subsequent depression
uplift of 25 per cent for failure to follow the Acas Code of Practice by not responding to the employee’s grievance and appeal.

The organisation appealed to the Employment Appeal Tribunal, arguing that the awards were ‘manifestly excessive’ and had applied the wrong Vento band. They also stated that the ET had double-counted some of the factors at the remedy hearing.

EAT

The EAT dismissed the appeal in the most part, primarily agreeing with the reasoning of the ET.

They outlined that the fact the discrimination had been a one-off act (they were not able to consider the other acts claimed) did not limit the employment tribunal to the lower Vento bracket. This is because the bands are not prescriptive and such awards will always be fact specific. The question that will be focussed on is what effect the discriminatory act has had on the claimant. Whether it was a one-off act or a course of conduct are relevant facts but not determinative.

The EAT did agree that the ET had erred by taking into account the organisation’s failure to follow the Acas Code of Practice in respect of the aggravated damages award and also the 25 per cent uplift. They therefore reduced the aggravated damages award by £1,000.

Note for employers

The case presented here is a useful commentary on how tribunals will approach Vento banding. It is not as clear cut as simply stating that one act of discrimination should only be given the lower band’s compensation; they will assess the full situation and its impact on the employee.

This case also reminds organisations of the importance of the Acas Code of Practice. By following the code, organisations can help to avoid potential claims being brought at a later date whilst also having clear guidelines to assist them in the best methods for handling a situation such as a post-employment grievance.

Jayeola v Commissioners for Her Majesty's Revenue and Customs - Race discrimination

Summary

The employment tribunal (ET) has ruled that it is not enough to have a race discrimination policy – organisations need to make sure they are putting it into practice.

Facts

A contact centre for Her Majesty's Revenue and Customs ('HMRC') maintained a zero tolerance policy against race discrimination whilst using cleaning staff through an outside contractor, G4S. A written agreement stated that all G4S staff required the centre’s approval to work there and that G4S were obligated to deal directly with any complaints regarding their conduct whilst at the centre.

A HMRC employee, who was of Nigerian descent, claimed that during a blackout on his floor a G4S cleaner had said to him, ‘it’s a good thing you’re wearing a white shirt or I wouldn’t have seen you.’ The employee took time off work due to stress, outlining that he was suffering from poor mental health due to a ‘racist culture’ that existed on his floor and that he had actually experienced three separate acts of discrimination since starting in his position. A senior manager escalated his complaint to G4S under the appropriate procedure.

Management were aware of one previous incident, in which a colleague had called the employee ‘bro’. Although formal mediation had taken place the employee had been told at the time he would need to lodge a formal grievance to take the matter further, which he had not done. After a period of two months his manager was finally informed that the G4S cleaner had been verbally reprimanded and there was no further action required. She therefore informed the employee that, if he chose to return to work, there was a chance he would come into contact with the cleaner again.

The claimant argued that the cleaner should either be either sacked or moved to a different location in the building as a reasonable adjustment to facilitate his return. The manager was told by HR that she could not request such an arrangement and instead suggested other options that would have lessened the chance of the employee coming into contact with the cleaner. These suggestions were refused and the employee later brought a claim to the employment tribunal (ET) for race discrimination, arguing that his claims had continually not been considered or responded to.

Tribunal

The ET found that the employee had suffered race discrimination contrary to S13 of the Equality Act 2010.

As the claimant had not established a comparator, the tribunal found that a hypothetical white comparator would have been treated differently in this situation as the employers could have taken additional steps to assist the employee and likely would have done if he was white. They outlined:

the employee’s manager had taken no effort to deduce if the request to move the G4S cleaner had been made to G4S
the employee’s manager had failed to conduct her own investigation
more was not done to determine HMRC’s stance on moving the cleaner to a different floor.

The ET explained that the employers were unable to provide satisfactory evidence to demonstrate they had properly followed their own race discrimination policy. This was mainly due to two reasons: the employers had accepted that the G4S cleaner could return to the floor despite the risk of further discrimination and the requirement to make a formal grievance for an investigation to be held into the earlier ‘bro’ comment. Ultimately, the respondents had failed to prove that this difference in treatment was not an act of discrimination and was also not because of the claimant’s race.

Note for employers

Although only a first instance tribunal decision, this case is a useful reminder that organisations who claim they maintain a zero tolerance stance on discrimination will need to ensure they follow this in practice, and can evidence this implementation; it is not enough to simply have a policy.

It can be difficult for organisations to defend their actions when they claim to have no scope to take action against a third-party employee. They should consider the context of commercial arrangements with service providers to ensure they have the right to request the removal of an unsuitable contractor. In any case, they will be required to show that they have taken all suitable action to avoid a claim that their inaction, or failure to take certain steps, was in itself discriminatory.

Moxam v Visible Changes - Race discrimination: comments not directed at claimant

Summary

Does race discrimination occur when comments are not directed at the employee?

Facts

Moxam, an office manager, was born in the UK to Jamaican parents. She made claims of direct race discrimination and harassment relating to four incidents which included a senior manager in the organisation making derogatory comments about immigrants and other colleagues making similar comments and jokes about black men. None of the comments were directed at Moxam, however she was upset by them. In particular, she was upset by the derogatory attitude to immigrants.

The employer argued that the four events did not constitute a continuing act for the purposes of determining harassment and discrimination. In addition, they argued that the incidents were not on the grounds of Moxam's race.

EAT

The EAT found in favour of the employee. An individual is entitled to be offended by any discriminatory conduct even if it is not on the grounds of their own race. The term 'on racial grounds' used previously in the Race Relations Act 1976, and the term ‘because of race’ used in the Equality Act 2010 both relate more widely to encompass general racist behaviour. The EAT also found that the four events did constitute a continuing act. The mindset of the individuals involved in the incidents was consistent, and was indicative of an ongoing racist attitude.

Note for employers

This case emphasises that in order for behaviour to be discriminatory, or to meet the definition of harassment, there is no requirement for it to be directed at an individual.

Cooperative Centrale Raiffeisen Boerenleenbank BA v Docker - Race discrimination: burden of proof

Summary

Failure to offer a redundant employee relocation was direct race discrimination.

Facts

Docker was English, and worked for a Dutch bank in London. He was global head of securities finance and synthetic products. Following the banking crisis, the bank recognised the need to cut costs and decided to make redundancies. As part of the redundancy programme it was decided to relocate the London securities finance team (of which Docker was a part) to Utrecht, in Holland.

There followed a number of conversations between Docker and his manager about the possible relocation of Docker to Utrecht. Nothing was said that suggested that Docker was unwilling to relocate. However, the manager then went ahead and offered a former Dutch colleague the role of head of securities finance, based in Utrecht. As there were no other suitable vacancies in the bank, Docker was made redundant.

Docker took a claim of race discrimination, arguing that he had not been given a realistic chance of getting the job in Utrecht. The employer argued that the job was given to another employee, not because he was Dutch but because he had strengths that Docker did not have.

EAT

The EAT agreed that there was sufficient information to suggest that race discrimination might have occurred, and it was for the bank to demonstrate a non-discriminatory reason for offering the job to the Dutch national and not considering Docker. Given that Docker's performance had been well above average on all competencies, there was no evidence that he did not have the required strengths. The claim of race discrimination was upheld.

Note for employers

This is a good example of how the burden of proof works in discrimination claims. Where the claimant can provide facts that show that his/her unfavourable treatment may have been on grounds of race (or another of the protected characteristics in the Equality Act 2010), the burden of proof shifts to the employer. This means that the onus is then on the employer to show a plausible, non-discriminatory reason for its actions - and if it cannot do so, the claimant’s case will succeed.

Tirkey v Chandok – Race discrimination: caste

2015-09

Summary

This case returned to an employment tribunal following an Employment Appeal Tribunal (EAT) decision accepting the principle that the current Equality Act 2010 protects individuals from caste discrimination because race discrimination includes ethnic origins, which in turn encompasses caste.

This is the first successful claimant in a caste discrimination claim in this country. When the claim started, it generated a debate about whether caste discrimination was covered by the Equality Act. The original tribunal decided it did. The employers appealed, arguing that because Parliament had passed a provision requiring an explicit amendment to the Act to include caste within the list of protected characteristics, but had not yet made the amendment, the law did not currently offer protection in this area.

EAT

The appeal failed. In its judgment, the EAT said:

the meaning of caste fell within “ethnic or national origins” in the Act
case law about ethnic origin was sufficiently flexible to encapsulate caste
claims would have to identify the caste to which the claimant belonged and demonstrate that it fell within the definition of ethnic origin.

When the case returned to the employment tribunal, it awarded the claimant £183,773 for unpaid wages. The case will go back to the tribunal in November 2015 to determine the discrimination award.

Note for employers

The Enterprise and Regulatory Reform Act 2013 required the government to amend the Equality Act and introduce caste as an area of protection. The government announced in February 2015 that it had “no immediate plans” to do so, and both the new government and the previous coalition have said there is a need for a public consultation on this issue beforehand.

Regardless of whether the amendment in the Enterprise Act is eventually implemented or not, employers face the risk of race discrimination claims as a result of the EAT decision in the Tirkey case if negative treatment arises from attitudes towards caste within the workplace.

Note: for the previous judgment in this case, go to Tirkey v Chandok.

Bradford Hospitals NHS Trust v Al-Shabib - Race discrimination: comparator

Summary

Claim fails for lack of evidence on how a comparator would have been treated

Facts

The claimant, a man of Iraqi origin, was employed as a researcher by an NHS trust, and joined the staff gym. He allowed his wife and child to use the gym, which was in breach of the rules, and was warned accordingly.

Following an investigation, the employer decided to withdraw Al-Shabib’s membership of the gym because of this breach of the rules. Al-Shabib argued that this was race discrimination, because a hypothetical white person would not have been treated in the same way.

EAT

The case was unsuccessful, however, because there was no evidence that Al-Shabib’s treatment was related to his race, or that a hypothetical person of a different race would have been treated any differently. The tribunal had erred in making its decision without sufficient evidence and had failed to distinguish between unreasonable behaviour and unfavourable treatment on racial grounds.

Note for employers

Employment tribunals, when hearing complaints of discrimination, are required to compare how the claimant was treated as against the treatment of someone of a different racial group in otherwise similar circumstances. The comparator can be an actual person or a hypothetical comparator. In this case, there was no evidence that a white member of staff who joined the staff gym and then breached the rules would have been treated any differently from the claimant, and so the case failed on that point.

Aderemi v London and SE Railway – Definition of disability

2013-01

Summary

An employee, dismissed on capability grounds after suffering from a bad back, claimed disability discrimination. A tribunal found he was not disabled. The EAT ruled the focus should be on what someone cannot do, or can only do with difficulty.

The classic view of disability is that it must amount to a serious and obvious limitation on a person’s ability to lead a normal life. The paradigm example most of us give when discussing a disabled person is the wheelchair user. Unfortunately, this layman’s view fails entirely to recognise how wide the definition of disability is according to the Equality Act 2010.

Tribunal

Aderemi was a station assistant whose role required him to be on his feet for nine hours a day, attending to customers and checking tickets. He began suffering from a bad back and was eventually dismissed on capability grounds. As a result, he filed a claim for disability discrimination but this was rejected on the basis that his impairment had no substantial adverse effect on his ability to carry out normal day-to-day activities. The tribunal judge found he was not disabled and, in reaching this decision, listed a number of things which Aderemi was still able to do.

EAT

On appeal, it was exactly this approach which the Employment Appeal Tribunal ruled was wrong and contrary to previously established case law. The focus of the Equality Act is not what someone can do but what they can’t do or which they can only do with difficulty. This approach is consistent with European decisions which look at disability as a social concept, not a medical one.

The EAT’s decision seems logical. Focusing on what a claimant can do is inappropriate. Taking an extreme example, if a visually-impaired person is fit enough to run the London Marathon, does that make him any less impaired in his ability to read small print? Plainly the answer to that question is ‘no’.

Note for employers

Employers faced with employees who assert they are disabled should avoid taking a generalist view of disability. Instead, they should try to understand how this impairment might affect an employee’s ability to work. They should not get into an argument about what that person can do, but should begin to assess whether there is a disability and what steps are needed to address it, usually with the help of medical and occupational health evidence.

The alternative is somewhat unpalatable. Appearing before an employment tribunal and asserting that no steps were taken because a member of staff was not disabled is an all or nothing point. It is always better to be able to say that steps were taken.

Da'Bell v NSPCC - Discrimination: compensation award for injury to feelings

Summary

Compensation for injury to feelings.

Background

In the case Vento v Chief Constable of West Yorkshire Police [2003], guidelines were given on how an employment tribunal should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. Prior to this case, there were no specific guidelines, and it was considered that there was no consistency in addressing this issue.

As a result, the Court of Appeal in Vento set out three bands to be used when assessing injury to feelings:

less serious cases - such as a one off event that was not extremely serious
serious cases - such as ongoing discrimination
very severe cases - such as prolonged discrimination or repeated harassment over a period of time.

In addition, it was noted that there might be occasions where it would be appropriate to pay above the top band in extremely serious cases, although that would be rare.

The Court of Appeal also set out payment ranges to link to each of these bands.

EAT

In the Da’Bell case, the Employment Appeal Tribunal reviewed the payment ranges established in Vento, noting that six years had passed since that ruling, and that it seemed appropriate for the ranges to be increased.

The three bands that are now used by the courts are:

less serious cases: up to £6,000
serious cases: £6,000 - £18,000
very severe cases: £18,000 - £30,000

Note for employers

It is important to note that this guidance only relates to compensation for injury to feelings. Compensation for any financial losses will be in addition to this amount.

Dziedziak v Future Electronics - Race discrimination: lanaguage instructions

Summary

Is it race discrimination to instruct an employee not to speak her own language?

Facts

This was a complex case including a number of claims. In summary the claims and responses were:

Unfair dismissal. The employee was made redundant. She argued that the her scoring in the selection matrix was unfair and hence her dismissal was unfair. The employment tribunal, supported later by the EAT, found that the redundancy was procedurally unfair, but reduced her compensation to zero as she would have been made redundant anyway even if a fair procedure had been followed.
Sex discrimination. She claimed that she was selected for redundancy because of her childcare commitments which had resulted in her being late to work on occasions. There was no evidence to support this, and this claim was rejected.
Race discrimination. She claimed that she had been told not to appeal in her own language which was Polish, and argued that this amounted to race discrimination. This claim was upheld by both the employment tribunal and the EAT.

It is worth looking in a little more detail at the race discrimination claim. Dziedziak had been told not to appeal 'in her own tongue' in an office where there were people of a number of different nationalities. No-one else was told to do this. Hence, there was sufficient evidence of possible discrimination for the burden of proof to pass to the employer. The employer was not able to give an explanation for the instruction, so the claim of race discrimination was upheld.

Note for employers

Care needs to be taken if there are employees of different nationalities, speaking different languages, in the workplace. As shown in P F Franco v Fyffes Group [2012], a general acceptance of employees speaking their native language might be acceptable provided they are required to speak English when those of other nationalities are present. However, in this case one employee was singled out and told not to speak in her native language and this amounted to race discrimination.

PF Franco v Fyffes Group - Race discrimination: languages in the workplace

Summary

Is it indirect race discrimination if fellow employees are speaking their native language?

Facts

Franco worked as a supervisor at a banana packing plant in Coventry. A number of the line supervisors were Polish, and they spoke in Polish when having business discussions. Franco was a Portuguese national, who spoke English, Portuguese, French and Spanish - but not Polish. He complained that he was isolated and that this amounted to indirect race discrimination because it placed individuals who did not speak Polish at a disadvantage.

Tribunal

The case was referred to a pre-hearing review to determine whether the claim had a reasonable prospect of success. The judge determined that it did not, and said:

'... to allow people who share a mother tongue to communicate in it is generally likely to lead to clearer communication and efficient management, and no sensible employer would try to suggest that two Polish workers should not speak in Polish between themselves. Of course it is quite different when someone who does not speak that language is also party to the conversation.'

It should also be noted that the employer was able to demonstrate that Polish speakers were reminded that they should speak English when others were around. The employment tribunal found that this was sufficient to ensure that non-Polish employees were not discriminated against. It also noted that packing and sorting did not require a high level of English ability, and it was not reasonable to insist that all employees had strong spoken English. On this basis the case was dismissed.

Note for employers

It is important to ensure that there is effective communication in the workplace. However, insisting that all employees speak English at work all the time might be an excessive requirement. In determining what level of English proficiency is needed, and whether it is at times appropriate to speak in languages other than English in the workplace, consideration should be given to the nature of the work.

Amnesty International v Ahmed - Race discrimination: direct discrimination cannot be justified

Summary

Direct discrimination is not open to justification

Facts

Ahmed, of Northern Sudanese ethnic origin, was employed by Amnesty International as a campaigner on issues related to Sudan.

A vacancy occurred for the position of researcher for the Sudanese region, and Ahmed applied. She was shortlisted for the post, but Amnesty International decided not to appoint her.

The reason for not appointing Ahmed was that her employer had concerns about her operating in this role. Firstly, there were concerns about her safety the organisation believed that there was a possibility, given Ahmed’s ethnic origins, that she might be at risk of ill treatment or violence if she travelled to Sudan or Eastern Chad. Secondly, there was a concern that people carrying out work relating to their country of origin might be, or be perceived to be, less impartial.

When Ahmed was not appointed to the role, she resigned and claimed direct and indirect race discrimination and constructive dismissal.

Tribunal

Amnesty International argued that it would have been in breach of the Health and Safety at Work Act 1974 if it had appointed Ahmed to a role that put her in danger. However, the tribunal upheld Ahmed's claims of direct race discrimination and constructive dismissal.

EAT

On appeal, the EAT found that Amnesty International had made a decision about Ahmed's appointment to the role of researcher on the basis of her ethnic origin and that this was clearly direct race discrimination. The EAT acknowledged that the employer had a good motive for its decision, but as direct race discrimination is not open to justification, that was not a factor it could take into account. The EAT commented that the employer’s motive, however ‘genuine or benign’, is irrelevant to a claim of direct race discrimination.

However, the EAT did not uphold the claim of constructive dismissal. To be successful with this claim, Ahmed needed to show that the employer had behaved in such a way as to seriously damage the relationship of trust and confidence between the employer and the employee. The EAT concluded that Amnesty International's actions had been with the best intent, and hence it could not be concluded that there had been a breach of trust and confidence.

Note for employers

This case confirms that direct discrimination is not open to the defence of justification, no matter what the employer’s motive for discriminating might be. The only exception is direct age discrimination which is, technically, open to the defence of justification. Direct race discrimination, however, is always unlawful whatever the circumstances (unless a specific occupational requirement can be shown).

G v Headteacher and Governors of St Gregory's Catholic Science College - Race discrimination: refusal to allow hairstyle

Summary

Refusal to allow school boy’s hairstyle was indirect race discrimination.

Facts

G was 11 years old and started at a new secondary school. He missed the induction event where uniform standards, including hairstyles, were discussed. When he started at the school on the first day, he was unaware of the school policies.

G was of Afro-Caribbean ethnic origin and in accordance with this culture, he had styled his hair in 'cornrows' (braids close to his head). In the High Court, an expert explained that this hairstyle is closely associated with the Afro-Caribbean culture. The school had banned this hairstyle for boys, fearing that it was too closely associated with gang cultures. So, when G attended school with his hair in cornrows he was told to change his hairstyle and was sent home. G refused and eventually moved to another school.

High Court

In considering his claim for indirect race discrimination, the judge clearly found that a provision, criterion or practice had been applied, with which it was more difficult for those of Afro-Caribbean origin to comply, and that G had been adversely affected as a result. The question, therefore, was whether the insistence that this hairstyle was not worn was a proportionate means of achieving a legitimate aim.

It was found that the aim of achieving an education environment free of gang culture, where the focus was on learning, was certainly a legitimate aim. However, the argument that banning cornrows was a proportionate means of achieving that aim was rejected, partly because the link to gang culture was rather weak.

The judge also took into account the public sector equality duty. This duty requires public authorities, prior to introducing any policies or rules, to consider their impact on people with different protected characteristics. It was found that the school had given no consideration to the impact on Afro-Caribbean people when introducing its rules on clothing and hairstyles, and hence there was a breach of the duty.

Note for employers

Although this is a case relating to a school child rather than an employee, the ruling contains some important points. The case shows that, even though there may be a legitimate aim underpinning a particular policy or rule, the policy or rule itself must also be a proportionate means of achieving the specified aim if it is to be lawful.

For those working in the public sector, it is important to note the value that was placed on giving consideration to the impact the new rules are likely to have prior to introducing them - the requirement under the public sector equality duty.

British Airways v Mak - Age discrimination: eligibility to claim

Summary

Hong Kong cabin crew could make a claim in Great Britain.

Facts

Mak and her colleagues took claims of race and age discrimination to an employment tribunal. As a preliminary matter, however, the question was raised as to whether they were eligible to bring such claims, due to the location of their work.

Mak and the others worked as cabin crew for British Airways. They were of Chinese origin and were based in Hong Kong. They worked on flights to London (around 28 round trips per year). As well as stop-over time in London, they were also required to attend compulsory training courses in London. At the end of each flight they had duties on landing, standby time and before take off.

To be able to bring a claim of discrimination to a UK employment tribunal, the claimants had to show that they worked wholly or partly in Great Britain. British Airways argued that any work in the UK was minimal, and that it should be treated as being work from Hong Kong.

EAT

The EAT found in favour of Mak and her colleagues. It ruled that the duties being carried out in London were essential and integral to their work (particularly as some of the duties were safety related). They could not be classed as minimal, as the work was clearly essential.

The EAT found that the nature of the work, not just the proportion of the work, should be considered when determining whether an employee works 'wholly or partly' in Great Britain.

Court of Appeal

A further attempt by British Airways to appeal to the Court of Appeal was dismissed.

Note for employers

This is an important ruling for those with employees who work partly in Great Britain. It is important to note that the nature of the duties performed are likely to be just as important, if not more important, than the proportion of time spent on those duties.

Richmond Pharmacology v Dhaliwal - Race discrimination: harassment by single remark

Summary

Whether a single remark can amount to harassment

Facts

Dhaliwal had worked for the employer for five years as a project manager, carrying out research and clinical trials into new medicines. She gave one month's notice of her resignation. Due to the nature of her duties, and her senior position, this gave real difficulties to the organisation and led to tensions between Dhaliwal and her line manager.

In a short meeting during her period of notice, Dhaliwal's line manager told her that her work had deteriorated and that she should continue to maintain her professional standards even though she was leaving. The line manager claimed that he was trying to make clear that their paths would probably cross in the future, and there was some dispute over the comment that was actually made. However, the employment tribunal found that the line manager did say "We will probably bump into each other in future, unless you are married off in India".

It was accepted that these comments did not come out of the blue - that Dhaliwal and her line manager had had previous conversations about the possibility of her getting married and giving up work, and Dhaliwal had told her line manager that her parents wanted to see her married.

Dhaliwal took a claim of racial harassment.

Tribunal

The employment tribunal upheld this claim but awarded her just £1,000 for injury to feelings.

EAT

The employer appealed to the EAT, which upheld the decision of the tribunal that the remark amounted to racial harassment, but also stated that it was a 'borderline' case.

The EAT noted that not every racially based comment or conduct will violate a person's dignity. It stated that it is "important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase".

Note for employers

Although this was a borderline case, it shows how a single remark can give rise to a claim of harassment. The low level of compensation for injury to feelings suggests that the tribunal took the view that the remark, although classed as harassment, was relatively mild.

Queenscourt v Nyateka - Race discrimination: racist remarks and banter

Summary

Racist remark can amount to harassment even where the claimant regularly engages in racist banter

Facts

Nyateka, a black Zimbabwean, worked as a team leader in a restaurant. There tended to be a great deal of racist banter among the staff who would often refer to each other using names which would otherwise be considered racially offensive.

Tribunal

The manager claimed that the comment at which Nyateka took offence had been said as a joke, but the tribunal did not believe this and thought it more likely that it was delivered in a sarcastic tone (as Nyateka claimed). Despite the fact that the incident complained of was a one-off, the tribunal ruled that the comment amounted to racial harassment.

EAT

The company appealed the decision on the grounds that the comment could not amount to harassment in circumstances where members of staff, including Nyateka herself, regularly engaged in high levels of racist and sexist banter. The EAT declined, however, to overturn the tribunal’s decision.

Note for employers

This case shows that employers are unlikely to succeed in defending a complaint of racial (or other type of) harassment just by showing that the claimant themselves took part in banter of a racial or racist nature. If an employee is genuinely upset by a racist comment, this may lead to a successful claim for harassment even if the employee has made similar comments to colleagues in the past.

Taylor v XLN Telecom - Race discrimination: injury to feelings

Summary

No need to show direct link between injury to feelings and knowledge of discriminatory actions.

Facts

Taylor, a black man, had been dismissed, ostensibly for unsatisfactory performance. He had previously complained of racially offensive conduct by one of his managers, but his grievance about this had been rejected. Taylor brought tribunal claims for unfair dismissal and victimisation on the grounds of race.

Tribunal

The employment tribunal found that the dismissal was unfair, and part of the reason for it was that Taylor had previously made complaints about race discrimination. However, when the tribunal assessed compensation, it did not make any award for injury to feelings or personal injury because Taylor attributed his injury to feelings to the manner of his dismissal, rather than to his knowledge that he had been victimised because of his race discrimination complaint.

In making this decision, the tribunal relied on Skyrail Oceanic v Coleman [1981], in which it was ruled that "any injury to feelings must result from the knowledge that it was an act of discrimination that brought about the dismissal". As Taylor did not link the injury to feelings specifically to the act of discrimination the Tribunal ruled that related compensation was not applicable.

EAT

The EAT overturned this ruling. It ruled that the Court of Appeal's judgment in Skyrail does not indicate that the claimant must have knowledge of the act of discrimination. Taylor was therefore entitled to compensation for injury to feelings, regardless of what he did or did not know at the time of his dismissal.

Note for employers

This ruling has important implications for the assessment of compensation in discrimination claims. Where a claim is successful, the claimant will be entitled to compensation for any injury to feelings or injury to health caused by the act complained of, even if he or she was unaware that it was discriminatory.

Kemeh v Ministry of Defence - Race discrimination

2014-02

Summary

A black British army cook claimed racial discrimination after being racially abused by a civilian employee of a sub-contractor which had a commercial contract with the Ministry of Defence (MoD). The MoD denied liability because the contract worker was not employed by the MoD but by a sub-contractor providing services.

Under discrimination law, an employer is liable for discriminatory acts committed by its employees in the course of their employment against co-workers or contract workers. An employer is also liable for anything done by an ‘agent’ acting with the employer’s authority. In law, an agent is someone given permission to act on the employer’s behalf in matters involving third parties. Depending on the circumstances, an agent could be a consultant, a recruitment agency, a contractor, and so on, dealing with other people as the employer’s representative or acting in the employer’s interests.

These issues came up in the case of Kemeh v Ministry of Defence in which the Court of Appeal had to consider whether an employer could be liable for the discriminatory act of a subcontractor's employee.

Facts

In this case, Sodexo was a sub-contractor of Serco, which in turn had a commercial contract with the Ministry of Defence (the end user) to provide facilities management services, including catering. Kemeh, a black British army cook, asked a civilian employee of Sodexo’s, working as a butcher, for some additional ingredients to make soup, to which the butcher replied, "Why should I trust you? First you are a private in the British Army and then you are black".

The Minstry of Defence (MoD) accepted that this abusive comment constituted direct racial discrimination, but denied liability because:

the butcher was not employed by the MoD
she worked for a sub-contractor providing services to the MoD and, as such, could not be the MoD’s agent.

Tribunal and EAT

A tribunal decided that the MoD was liable for the racial discrimination. It took the view that a contractor carrying out functions for the benefit of an employer, which that employer would otherwise need to do for itself, constituted acting on the employer's behalf, thereby creating an agency relationship. The Employment Appeal Tribunal disagreed. Given the legal definition of an agency relationship, the butcher had not been acting as an agent for the MoD but in her capacity as an employee of Sodexo. Kemeh appealed.

Court of Appeal

The Court of Appeal rejected his appeal. The central issue was whether the butcher, as an ‘employee’ of Sodexo, which was sub-contracted to provide services to Serco, so that Serco could provide a service to the MoD, was acting as the MoD’s agent. In the circumstances, no question of agency arose. There was no persuasive evidence to suggest that the civilian butcher had been given permission to act on the MoD’s behalf when dealing with third parties. It could not be right to describe her as an agent of the MoD, just because the work she performed was ultimately for the MoD’s benefit.

Note to employers

While there are some mental gymnastics involved in the legal logic, the case makes it clear that under employment law:

an end user employer cannot be liable for direct discrimination committed against one of its employees by a contract worker
the end user’s employees cannot bring claims against the employer’s contractor as they are not in the contractor’s employment.

As the court pointed out, there is a real risk that an employee in these circumstances has no remedy at all and Parliament may wish to consider closing this gap in the legislation.

For the time being, although there may be a legal ‘get out of jail’ card in such cases, it remains the case that discriminatory behaviour is not acceptable in the workplace. Contractors should make this clear to their workers. End users should make it clear to contractors, reserving the right to ask for offending contract workers to be removed from providing services.

If the claim in this case had been one of harassment, the situation could have been different. While the third-party harassment provisions (whereby an employer could be liable for harassment committed by third parties such as contractors, customers, and so on) were abolished last year, there are still legal remedies which victims could pursue, such as resigning and claiming constructive dismissal for breach of trust and confidence, if third-party harassment is ignored by their employer.

May and Baker (t/a Sanofi-Aventis Pharma) v Okerago - Employment status

Summary

Employer not liable for agency worker’s race discrimination.

Facts

Okerago was an employee of May and Baker). In July 2006 she claimed that an agency worker (Dower), engaged by the company, asked her who she was supporting in the World Cup. Okerago said that she would not be supporting England, and she alleged that Dower told her that she should, therefore, "go back to her own country". Okerago lodged a grievance with the company but this was not fully investigated.

In March 2007 Okerago was dismissed for a conduct-related issue and brought claims to the employment tribunal, including one of direct race discrimination. The Equality Act 2010 (like the earlier Race Relations Act 1976) states that anything done by an employee in the course of his or her employment will be treated as having been done by the employer, whether or not it was done with the employer's knowledge or approval. So, the first question for the tribunal to address was whether Dower was May and Baker’s employee.

Tribunal

The employment tribunal concluded that Dower was treated as an employee and, therefore, was an employee. In reaching this conclusion the tribunal did not apply the judgment of James v Greenwich Borough Council [2008].

EAT

On appeal, the EAT rejected this finding. It found that the tribunal had not applied the legal principles correctly and there was inadequate reasoning to support its conclusion.

The Equality Act 2010 also states that a person who knowingly aids another to carry out an action made unlawful by the Act is treated as doing the unlawful act him or herself. So, the next question to be addressed was whether the company had aided Dower’s conduct.

Although the employer had failed to investigate the allegation, this was not aiding the behaviour, as at this stage the incident had already occurred. There was no evidence that the employer had done anything to support the attitude or comments of Dower.

On this basis, the EAT rejected the employment tribunal's conclusion that May and Baker was liable for the acts of Dower as she was not the company’s employee.

Note for employers

Although the definition of "employment" in the Equality Act 2010 is wider than the equivalent definition in the Employment Rights Act 1996, it cannot be presumed that an agency worker who commits a discriminatory act will be seen as an employee. Despite this, employers are advised to apply the same standards in relation to behaviour and discriminatory actions to all who work in the organisation, whatever their employment status.

Osborne Clarke Services v Purohit - Recruitment: race discrimination

Summary

Automatically excluding non-EEA applications because of little likelihood of obtaining a work visa was racially discriminatory

Purohit, a non-EEA national, had attempted to complete an online application form for a training contract with Osborne Clarke, an English law firm. As part of the application process, he was asked a number of preliminary questions, one of which enquired whether he held a work permit entitling him to work in the UK. When he answered “no” to this question, he received an automated message saying “we are sorry but we are unable to accept applications from candidates who require a work permit to take up employment in the UK”. Purohit subsequently claimed indirect race discrimination on the grounds of nationality in an employment tribunal.

The law firm argued that, due to UK Border Agency rules, there was little chance of being able to obtain work permits in respect of prospective trainees and that these rules justified its policy of not accepting applications for solicitor training contracts from non-EEA nationals.

The tribunal held that the firm’s policy automatically excluding non-EEA nationals from the pool of candidates for training contracts amounted to indirect race discrimination on the grounds of nationality.

The EAT upheld this decision, noting that the firm had provided no evidence to substantiate the assertion that there was little chance of being able to obtain work permits. The firm had not, at the time, corresponded with the UK Border Agency, nor had it attempted to apply for any work permits in respect of non-EEA nationals seeking training contracts. Consequently, the firm’s policy of automatically excluding non-EEA nationals from the prospective pool of candidates for training contracts was not justified.

Note for employers

While this case refers to the now superseded work permit arrangements, it remains advisable for recruiting employers to consider all applicants for training or employment whatever their nationality, and not to rule out non-EEA applicants on the grounds of an assumption that they will not be able to obtain permission for them to work in the UK. It is important also to note that the Equality and Human Rights Commission’s code of practice on racial equality in employment recommends that employers should check an applicant’s right to work in the UK only in the latter stages of the selection process.

Royal Bank of Scotland v Morris - Race discrimination: stereotypical view

Summary

Can a single phrase amount to race discrimination?

Facts

Morris was of black ethnic origin. He had a number of difficulties with his line manager (who was white), and complained to a more senior manager. The senior manager made the assumption that the complaints were related to race. Morris denied that the issues were related to race in any way and objected to the suggestion that he was 'playing the race card'.

Morris then went off sick due to stress and anxiety. He raised a formal grievance, focusing primarily on the issues relating to his line manager, but also making reference to the senior manager's comments about the complaints being related to race. The grievance investigated the complaints about the line manager and rejected them, but did not address the comments made by the senior manager.

It was noted that the senior manager did not see the complaints about the line manager as a straightforward colleague issue, but assumed that they were based on race. His comment that Morris was ‘playing the race card’ was therefore interpreted as direct race discrimination against Morris, albeit not a serious example of discrimination. Rather, the comment suggested an underlying stereotypical view.

Note for employers

The EAT commented that this situation should have been dealt with by an informal apology. This case also demonstrates that it is important to address underlying personal views that might give rise to discriminatory comments or actions; in discrimination law it is not only the intent of the comments or actions that determines whether they can be classed as discriminatory, but also their effect on the person on the receiving end.

Burton v De Vere Hotels - Race discrimination by third party

Summary

Are employers responsible for discrimination by a third party?

Facts

In this case, two black female waitresses were working at a private function being held at the hotel where they were employed. Bernard Manning, a comedian (who was not employed by the hotel) was performing at the function, and during his after dinner act he made a number of highly offensive sexist and racist jokes. Some of these jokes were directed specifically at the two waitresses as they were clearing tables.

The two waitresses brought claims of direct race discrimination against their employer, the hotel, as they had been very upset and embarrassed by what happened.

Tribunal and EAT

They were unsuccessful in the employment tribunal, but the EAT upheld their appeal. The EAT concluded that the jokes amounted to direct discrimination, and that the employer was liable because it did nothing to stop the jokes or to remove the women from the source of the harassment in circumstances where it could have done so.

Note for employers

This case took place before the third party harassment provisions of the Equality Act were introduced. It has become of interest again, because the legislation relating to third party harassment was repealed with effect from 1 October 2013. This case suggests that, even though the legislation has been removed, an employer still has a duty to take all possible practicable steps to ensure that employees do not suffer discriminatory treatment from a third party.

Durrani v London Borough of Ealing - Harassment and victimisation

2013-04

Summary

An employee claimed direct discrimination, harassment and victimisation against his former employer, after he was disciplined, issued with a final written warning, appealed against the warning but was unsuccessful, suspended and finally made redundant.

The claimant in this case, of British and Pakistani origin, was employed as a housing benefits visiting officer in the tenancy support team by Ealing Homes and also worked part-time on a voluntary basis for the local authority as a canvasser for electoral services. He was disciplined for allegedly submitting false canvass certificates. After his acquittal in a criminal court, his employer issued him with a final written warning. He appealed but was unsuccessful. Shortly afterwards, he was suspended for allegedly offering an inducement to a tenant in return for making a false statement to help his defence against the criminal charges. While on suspension, he suffered a heart attack and never returned to work. He was later made redundant by Ealing Homes when the tenancy support team lost its funding.

Tribunal

Durrani claimed direct discrimination, harassment and victimisation against the local authority. He complained he was subjected to harassment and bullying in relation to the outcome of the criminal and internal disciplinary process. The tribunal dismissed the discrimination claims as he had at no time raised racial discrimination as a complaint during the disciplinary process. The decision to discipline him for bringing his employer into disrepute was not because of his race. He had stated at his appeal meeting that he was treated differently because another manager believed he had committed the offence, even though he was acquitted. This, his employer held, was more about unfair treatment than discriminatory treatment. As the employer’s actions were for a non-discriminatory reason, there could be no victimisation claim under section 27 if the Equality Act 2010.

EAT

On appeal, the Employment Appeal Tribunal held the tribunal was entitled to reach a decision that there was no victimisation even though it did not deal explicitly with victimisation as distinct from the issue of direct discrimination and harassment. The tribunal was justified in its conclusions that the claims of race discrimination should be dismissed.

Note for employers

This case shows it is not enough just to complain about 'discrimination' without saying exactly what kind of discrimination you are complaining about. In what appears to be very confused evidence, Durrani could not point to any particular type of discrimination, so the complaint was held to be one mainly of unfair treatment – that could not form the basis for a victimisation claim.

Commissioner of Police of the Metropolis v Osinaike - Race discrimination: unfair treatment

Summary

Can an employee claim race discrimination based on general unfair treatment?

Facts

Osinaike, a black woman, was employed by the police force as a detention officer. In September 2006 she made a request to transfer from a station in Tottenham to a station in Southwark. This move took place in January 2007. She had a number of difficulties working at the new station, partly because she had been arrested and held at that station in 2005 following a dispute with a neighbour. She had made complaints following that arrest, and they were not resolved until March 2007. In addition she struggled with the long commute.

After a series of meetings and following queries relating to her mental health, she was referred to an occupational health adviser. She subsequently went on sick leave and made a number of claims to the employment tribunal for racial harassment and discrimination.

Tribunal

The tribunal dismissed all her claims apart from one - which related to a claim of racial harassment following a comment from the senior management team that she needed to see a psychiatrist. The tribunal found that, had Osinaike been white, the police would have understood the ongoing difficulties associated with her working at the Southwark station and would not have seen her as being in need of mental health assistance.

EAT

The EAT overturned this decision. The EAT found that there was no evidence that a white person would have been treated any differently to Osinaike. Simply finding that conduct is unreasonable or unfair is not sufficient to conclude that racial harassment has occurred. For there to be racial harassment, the unreasonable or unfair conduct had to be related to race. There was no evidence of this.

Note for employers

The equality legislation does not protect employees from unfair treatment in general; it protects against discriminatory treatment. However unfair or unreasonable an employer’s treatment of staff may be, the treatment will not amount to discrimination if everyone is treated in the same way.

Woodhouse v West North West Homes Leeds - Victimisation

2013-06

Summary

An employee who brought seven baseless employment tribunal claims and lodged 10 complaints of race discrimination against his employer was informed in writing that his employer did not see grounds for a sustainable working relationship in the future. The employee claimed victimisation. The Employment Appeal Tribunal had to decide whether an employer could dispense with the services of an employee, who routinely brought baseless grievances, on the grounds that the trust and confidence between them had broken down.

During just four years of employment, Woodhouse brought seven employment tribunal claims and lodged 10 complaints of race discrimination against his employer. None of his formal claims succeeded, and the vast majority of his complaints were found to be empty allegations without any proper evidence or grounds for suspicion. Yet, as any employer should, West North West Homes carried out a full and proper investigation each and every time.

Shortly before his seventh and final claim, Woodhouse told his line manager that he had lost faith in the organisation and was only staying on to fight his cases.

This was discussed at a subsequent meeting, after which Woodhouse was informed in writing that, as he had lost all trust and confidence in the employer and that this had been the position for some considerable time, his employer didn’t see grounds for a sustainable working relationship in the future.

Cue, of course, another claim – this one for victimisation.

Tribunal

According to the Equality Act 2010, a person suffers victimisation if he or she is subjected to a detriment for carrying out a protected act, or if that person believes that he or she has done so.

In the first instance, the employment tribunal ruled this was not a case of victimisation but a reasonable response on the part of the employer that would have applied to any employee bringing countless grievances and claims without merit. The tribunal highlighted that Woodhouse had pursued grievances through to the second and third stages of the employer’s grievance procedure, persistently refusing to accept it when those grievances were dismissed. In fact, their rejection seemed to spur on further allegations that the way he was treated by those reviewing his complaints was motivated by his racial origins (he was black).

The tribunal also found there had been no race discrimination as the employer would have taken similar action against any employee who had brought so many baseless claims.

EAT

Woodhouse appealed to the EAT, arguing that the tribunal should not have asked how the employer had reacted to Woodhouse’s actions, but whether his dismissal had been because he had carried out a protected act, for example, lodging a formal complaint.

The employer had agreed that Woodhouse had been dismissed because he had continually raised grievances of race discrimination that each time turned out to be unfounded. And it was because of this fact that the EAT ruled in Woodhouse’s favour – highlighting that he had been dismissed for carrying out protected acts.

Note for employers

While this decision no doubt appears harsh to employers, it is correct in law. However, it might trigger calls to change the definition of victimisation.

The key factor in this case was the absence of bad faith on the part of the claimant – something that cannot be said of similar cases. Baseless grievances can all too easily cause a breakdown of trust and confidence, but employers should be careful to discipline any employees who bring such grievances alleging discrimination.

Each case turns on its own facts, but employers would be wise to read and understand the definition of victimisation so they do not fall foul of its potentially serious implications.

Komeng v Creative Support Limited

Summary

The Employment Appeal Tribunal (EAT) has ruled that, when determining injury to feelings compensation in discrimination cases, it is not only one-off acts that fall into the lower band.

In the case Vento v Chief Constable of West Yorkshire Police, guidelines were given on how an employment tribunal (ET) should determine the amount of money to be awarded for injury to feelings in successful discrimination claims. As a result, the Court of Appeal in Vento set out three bands to be used when assessing injury to feelings:

less serious cases, which can be a one-off event that was not extremely serious
serious cases, such as ongoing discrimination
very severe cases, such as prolonged discrimination or repeated harassment over a period of time.

Compensation for discrimination claims remain unlimited and tribunals can award more than the upper limit provided in the Vento bands in exceptional cases. For more information surrounding current Vento band rates, please refer to the ‘Remedies’ section of our race discrimination overview.

The Employment Appeal Tribunal (EAT) has previously ruled in the case of Cadogan Hotel Partners Limited v Ozog that, when tribunals are considering awards for injury to feelings, the focus should be on the actual injury suffered by the claimant and not the gravity of the acts of the organisation.

Facts

The employee, who described himself as ‘black African’, had worked for an organisation since 2011. During this time, he had asked to be enrolled onto a Level 3 NVQ course as part of his ongoing development. However, the organisation failed to take any steps to enrol him on such a course, despite the fact that his colleagues were provided opportunity to do so.

In addition to this, the employee was also regularly made to work weekend shifts, despite his colleagues often receiving weekends off. This arrangement was not changed even though he raised this issue with the organisation.

The employee later brought a claim to the ET for race discrimination.

ET

The ET upheld his claim and awarded him compensation. When calculating what Vento band his injury to feelings compensation would fall into, the tribunal applied the Cadogan principle. They found that the fact that the employee had continued to work for the organisation for several years despite not being enrolled onto the course indicated that the distress he suffered was not significant.

The tribunal also held that there was no evidence that had been presented to them that the employee would have been automatically promoted had he been able to complete the course, meaning there was no proof he would have suffered any further detriment. In the tribunal’s view, his compensation therefore fell near ‘the top of the lower band’.

The employee appealed the amount of compensation awarded to the EAT, arguing that it was too low and should have fallen into the middle banding.

EAT

The EAT dismissed his argument, agreeing with the reasoning of the ET.

They held that, when determining injury to feelings compensation, the consideration is the effect of the conduct on the Claimant rather than looking at the gravity of the organisation’s actions. It was therefore not only one-off acts that could fall within the lower Vento band.

In this case, while the employee was understandably unhappy with his treatment, there was no indication of any serious injury sufficient to take this out of the lower band

Note for employers

This case is a useful commentary on Vento banding. It confirms that even a series of acts, where they have a low-level impact, can remain in the lower band for injury. There is no hard and fast rule that the lower band is only appropriate for one-off acts.

That said, organisations should remember that focus will always be placed on the impact of the treatment on the individual. Therefore, single acts of discrimination could still end up in the middle or higher bands, dependent upon how the employee reacts to it.

Court

Employment Appeal Tribunal

Key points

Summary

Law

Facts

Employment Tribunal (ET)

Employment Appeals Tribunal (EAT)

Court of Appeal (COA)

Supreme Court

Summary

Facts

ET

EAT

Summary

Facts

ET

EAT

Summary

Facts

Tribunal

Summary

Facts

EAT

Summary

Facts

EAT

Summary

EAT

Summary

Facts

EAT

Summary

Tribunal

EAT

Summary

Background

EAT

Summary

Facts

Summary

Facts

Tribunal

Summary

Facts

Tribunal

EAT

Summary

Facts

High Court

Summary

Facts

EAT

Court of Appeal

Summary

Facts

Tribunal

EAT

Summary

Facts

Tribunal

EAT

Summary

Facts

Tribunal

EAT

Summary

Facts

Tribunal and EAT

Court of Appeal

Summary

Facts

Tribunal

EAT

Summary

Summary

Facts

Summary

Facts

Tribunal and EAT

Summary