October 2008

Race Discrimination Case

This was a case in May this year where an employee of black African ethnic origin brought a claim of direct discrimination, harassment and victimisation on the grounds of race against three respondents.

Specifically, the employee said that he had been less favourably treated than another person and that such less favourable treatment had been detrimental. He also claimed that he had been subjected to harassment on the ground of his ethnic origin and victimised, because he alleged that the respondents had committed an act which would amount to a contravention of the Race Relations Act (RRA). Finally, the claimant asserted that he was dismissed in breach of contract, in that the first respondent (referred to in the judgement as “the Company”) did not follow its own grievance procedures and dismissed him without due notice. The Respondents each denied all of the claims and said that the Claimant resigned and was not dismissed.

The Company is in the business of fitting tyres, brakes, exhausts and of undertaking more substantial mechanical repairs. It employs an ethnically diverse work force of around 250 people. In March 2007 the Company advertised for employees for a new Autocentre. The advertisement referred to various posts including that of “semi skilled technicians”. The Claimant applied for such a post and, while he waited for a response, went into the Auto centre to enquire further about the job. He spoke to one of the respondents, who confirmed that they had received his application and that interviews were in progress. The respondent further confirmed that they needed a semi skilled technician, and that the job involved experience of mechanical engineering. This conflicted with the Claimant’s account that he was told that the job primarily involved cleaning duties. The Tribunal preferred the Respondents evidence, which was supported by other witnesses.

The Claimant was employed from April 2007 as a semi skilled technician because that was the available grade. This was so notwithstanding that the Claimant’s primary duties were cleaning. The Claimant made his enthusiasm to move on to mechanical work clear at the time of his employment and subsequently, and as a result had been involved in such work in a support or supervised role. In the Company’s opinion the Claimant had however struggled with mechanical work. He was enthusiastic but thought he was better than he was, which raised issues. It was the Company’s opinion that in order to progress, the Claimant needed training.From the Company’s view therefore the Claimant had been employed as a cleaner, with a secondary role of helping colleagues with mechanical duties. The Claimant wanted to believe something different, and his consequent reluctance to undertake cleaning duties created inevitable tensions. The Company compounded the position by neither issuing the Claimant with a statement of terms and conditions of employment nor with a job description and indeed, had this been done, the case may never have been brought.

2/.In July 2007 the Claimant was appointed a new line manager (2nd respondent) and tensions between the two immediately began to arise when the manager closely supervised the Claimant and prevented him from doing mechanical work. Over the following months there arose a series of incidents whereby both employees became increasingly hostile towards each other, culminating in a full scale row the Tribunal found reflected little credit on either men, and which resulted in the Claimant leaving the Autocentre in an ill considered huff.

The Claimant subsequently returned a few days later to collect his tools. He then apologised for his behaviour and agreed to return. By his own admission, however, the apology was not given out of any conviction, but only through a desire to get his job back. The Tribunal did not find that the Claimant said anything at this stage that would have amounted to an allegation that anyone had committed an act in contravention of the RRA.

Upon the Claimant’s return he was presented with a list of job duties to agree, which the Claimant believed to represent a demotion from his role as a semi skilled technician engaged to perform mechanical work to that of a cleaner. The Tribunal found that in truth the list was a statement of the job duties the Claimant had not only been employed to do but had been doing all along. There was no change in pay or other terms and conditions and the Claimant signed the statement, albeit that he later claimed he did so under duress.

Almost immediately, a dispute arose between the Claimant and his line manager resulting in the Claimant being told to go home, which he refused to do. The Claimant now raised a complaint to the Company that he was being bullied and discriminated against. The Claimant further told the Company that he felt unsafe and exposed and that he was leaving. The Company manager (3rd respondent) told the Tribunal that the Claimant swore at him and left the premises. The Tribunal found that the Claimant therefore made the decision to leave without prompting and was not dismissed expressly or constructively.

Regarding the alleged derogatory comments about the Claimant’s ethnic origin and immigrant status, the Tribunal found that the various complaints could be grouped together, and that there was no evidence from which it could conclude that the alleged incidents occurred. The complaints were therefore dismissed.

Regarding other allegations of specific discrimination, the Tribunal’s plain finding in relation to these was that, bearing in mind that it was difficult to find direct evidence of discrimination, the Claimant had not proved facts from which it could conclude that the Company or the other two respondents had committed any acts of discrimination. In terms of direct discrimination, the Tribunal concluded that the Claimant had not been treated any less favourably than a hypothetical comparator (a person of white British ethnic origin).

The alleged incidents were also relied upon by the Claimant as instances of harassment. The Tribunal found that while such conduct was unwanted by the Claimant, it was not on grounds of the Claimant’s ethnic origin. Accordingly, the Claimant’s claims of direct race discrimination , harassment and victimisation were dismissed.

3/.Finally, regarding the breach of contract claim, this was brought on the basis that the Claimant was dismissed without notice and thereby suffered a loss of pay and/or the Company failed to follow a contractual grievance procedure in relation to the Claimant’s informal and formal grievances. The first of these failed because the tribunal found that the Claimant left of his own volition and was not dismissed, constructively or otherwise. The second also failed, since the Tribunal found no evidence that the grievance procedure was contractual. Even if it were, the Tribunal found it difficult to see that the Claimant suffered any loss as a result of any breach. Presumably the argument would be that , had the Company manager correctly operated it he might have encouraged the Claimant not to leave and the Claimant would have continued in employment for a period. That argument, however, was not made out.

If you have any questions or comments relating to these cases, please contact Adam Cox .