Discrimination claims can be some of the most complex in employment law in England and Wales. David Cooper, partner in the Employment team at Excello, regularly reviews the latest decisions to ensure employees and employers alike have the best understanding of how a tribunal will assess such claims.
This article summarises recent examples, with links to longer analyses by David.
Race discrimination in the workplace
When tenancy support worker Karen Adams told her supervisor off-hand about a ‘milestone’ birthday she’d not mentioned to colleagues, she received a card and gift as per the workplace’s normal practice. Subsequent events – another colleague having a lunch for their own birthday, followed by “spiteful” conduct by her supervisor – prompted her to submit a grievance.
Her employer P3 did not uphold her grievance, so Ms Adams resigned and claimed direct race discrimination under s.136 Equality Act. The Employment Tribunal set out to determine whether she had received unfavourable treatment, and whether that was a result of her race.
While the judge favourably acknowledged Ms Adams’ arguments that microaggressions can amount to discrimination, her case failed on the basis that the broader workplace was unaware of her birthday date due to confidentiality reasons; that her receiving a card and gift was standard practice and that a white colleague would have received the same; and that her supervisor had previously gone out of their way to help Ms Adams through a difficult probation period.
Race discrimination claimants must demonstrate both that they have been discriminated against, and that the unfavourable treatment came as a result of their ethnicity. The court will typically seek ‘comparators’, other examples within the workplace, to assess the merits of such a claim.
Religious discrimination and how to handle complaints
In an 11 day tribunal hearing, Zara Saiyed alleged she’d been sacked by Heathrow Airport after a colleague told her to remove a Palestine flag badge from her staff lanyard, and she had refused to do so. Her claim was based on direct race and religious discrimination, harassment relating to race and religion and victimisation.
Each of these has different criteria, and in this case came bundled with emotionally charged issues – Ms Saiyed alleged that her colleague’s challenge was tantamount to finding her hijab offensive. London Heathrow provided in its defence its clear and strict policy on employees only being able to wear “approved and supported badges”.
The Tribunal’s ruling concluded that on every ground, it was clearly demonstrable that the employer had not discriminated against Ms Saiyed on the basis of her religion or her race. She was also criticised for fabrications and exaggerations in her submissions.
London Heathrow’s defence in this case was clearly sufficient to rebut the claim successfully. Nonetheless, employers must not be complacent in challenging such claims and should investigate promptly and impartially under their grievance procedure. They should avoid victimisation of the complainant and ensure compliance with the Equality Act 2010. Seeking early legal advice is usually sensible.
Language discrimination and redundancy
Alexander Wibaut brought a claim against his employer – a UK subsidiary of a French business – arguing his redundancy was unfair not only because he had made a protected disclosure about the treatment of his tax position, but also because he was not French and didn’t speak the language, and was marginalised by colleagues as a result.
The Tribunal dealt with both arguments. They found that Mr Wibaut’s claims that he had overheard people at a diversity session saying he was only ‘tolerated’ as a non-Frenchman, and that he was ignored at a dinner as everyone else spoke French, did not amount to race discrimination. It was found that he only saw those experiences as discriminatory with the benefit of hindsight. On the whistleblowing point, his claim failed the public interest test.
In some respects, the claimant succeeded – his employer did not provide adequate explanations for the removal of his role and offered him no fair chance to seek a new role. Mr Wibaut also did not receive an adequate chance to appeal, so the Tribunal ruled that his dismissal was unfair on procedural grounds, albeit with the caveat that a fair process would still have left a 75% chance of him being fairly dismissed.
While this case demonstrates that overhearing alleged discrimination from colleagues is not sufficient for a claim, it also reminds employers they must get the basics right. When employees are made redundant, business leaders must identify a genuine business reason for redundancy using objective selection criteria, and consult while considering suitable alternative employment for those affected. They must also provide appropriate notice and statutory redundancy pay to eligible employees.
