Sydney Mitchell LLP
Employers that fail to take discrimination in the workplace seriously can expect to be on the receiving end of legal complaints advises Emma-Louise Hewitt, Head of Employment Law at Sydney Mitchell LLP. The point was powerfully made by the case of a property concierge who suffered racial and homophobic abuse but was treated by his line manager as if he were to blame (BDW Trading Ltd v Kopec).
The Polish concierge complained to his manager after two delivery drivers subjected him to discriminatory comments. She was appalled by the racist words used by one driver and acknowledged the rudeness of the other. She was, however, also critical of the concierge's so-called 'softer skills' and blamed him on the basis that his own manner and demeanour had not helped the situation.
The manager decided that a disciplinary process was needed because the concierge was not prepared to discuss his own shortcomings and he was issued with a verbal warning. After learning that he had sent a text message to one of the drivers, telling him that he had been reported to the police and asking him to tell the truth about the incident, the concierge was suspended. He resigned the following day and lodged a complaint with an Employment Tribunal (ET).
In ruling that he had been constructively unfairly dismissed, the ET found that his employer had shown a complete lack of awareness of the seriousness of him being subjected to discriminatory abuse. The line manager had not read the employer's equality policy and had received no prior equality or diversity training. By siding with the drivers, she had effectively blamed the concierge for the incidents, the gravity of which had been downplayed in the disciplinary process.
Turning to other issues in the case, the ET rejected the concierge's claim that the employer had itself subjected him to direct discrimination. It found, however, that the failure to take his complaints seriously or to address them properly rendered the employer liable for the harassment perpetrated by the third-party drivers.
In upholding the employer's challenge to the latter ruling, the Employment Appeal Tribunal (EAT) held that the ET had erred in making no findings as to whether the line manager or other employees involved in the disciplinary process themselves had any discriminatory motive. The harassment issue was sent back to the same ET for fresh consideration. The EAT suggested that, as a matter of efficient case management, the amount of compensation due to the concierge in respect of his unfair constructive dismissal might also be assessed at that hearing.
Discrimination issues can be tricky and ensuring that employees are trained in equality and diversity is key for limiting risks. Speak to Emma-Louise Hewitt on 0808 166 8827 (firstname.lastname@example.org) who can assess your training requirements and deal with any bubbling issues.
Head of Employment Law
Sydney Mitchell LLP