26th January, 2021
Worker wins race discrimination at Asian food manufacturers
Mr Colin Sorsby (‘Claimant’), a white British national, worked as a production operative at Bradford Management Services LLP (the ‘Respondent’) on a zero-hour contract.
The Respondent is part of the restaurant group, Mumtaz which operates Indian restaurants and ready meals across the UK. The Respondent predominately employs Asian staff.
Facts of the case
During the Claimant’s employment, his line manager, Mr Akhtar made repeated remarks such as “this is an Asian Company, go work for an English Company”. On 16 October 2019, the Claimant raised a grievance against Mr Akhtar to the HR Manager about his remarks but had no success.
Three weeks later the Respondent informed the Claimant he would be placed “on call” in response to alleged performance and attendance concerns. The Claimant was told to look for another job as there was a shortage of work and as such, he should return the Respondent’s property and clean out his lockers.
The Claimant received little information about his alleged performance and attendance issues. The Claimant was only told that as he is English and not Asian, he did not know the cuisine well enough to cook the recipes. When pressed for the source of these allegations, the Respondent informed the Claimant these were put forward by Mr Akhtar.
Whilst the Claimant was leaving the Respondent’s premises, Mr Akhtar alleged that the Claimant had used offensive language and gestures directed at the Claimant. The Respondent noted the allegation but did not invite the Claimant to an investigatory meeting.
The Claimant later filed a second grievance as despite being told there was a shortage of work the Respondent was hiring new staff. The Claimant argued that the reason he was being placed “on call” was because he had raised a complaint against Mr Akhtar.
Subsequently, the Respondent sent the Claimant a letter inviting him to an investigatory meeting regarding alleged gross misconduct. Again, the Claimant did not receive any detail of those investigations nor did the Respondent address the Claimant’s grievance. The Claimant asked for the investigatory meeting to be rearranged.
Finally, the Respondent issued a letter stating it would rearrange the investigatory meeting and that a separate meeting would be held to investigate the Claimant’s grievance. The Claimant submitted that he never received this letter.
The Claimant brought proceedings for direct discrimination on the grounds of race, harassment and victimisation against the Respondent and Mr Akhtar.
The Tribunal found in favour of the Claimant on all grounds.
Direct Discrimination – it was held the Claimant was treated less favourably than other workers because he was white and not Asian. It was found that no concerns had been raised to the Claimant until after he had submitted a grievance against Mr Akhtar on 16 October 2019. The Tribunal, therefore, held that the reason the Claimant was placed on call was that “Mr Akhtar objected to the Claimant raising an allegation of racial harassment against him and secondly because Mr Akhtar wanted the Claimant to be removed from the workplace”.
The Respondent put forward that other non-white employees had also been placed “on-call”. The Tribunal dismissed this argument. Considering the facts, the Tribunal found that placing the Claimant ‘on-call’ was in fact a euphemism for being dismissed as he was told to look for another job. In addition, despite working on a zero-hour contract, there was a reasonable expectation that the Claimant would work a certain number of hours each week evidenced from his past hours.
The Tribunal also noted a number of procedural issues with the Respondent’s disciplinary proceedings in that the Respondent did not specify the alleged act of gross misconduct and no witnesses were interviewed.
Victimisation – when the Claimant raised a grievance to HR they ignored it and informed him that he was going to be subject to an investigation in relation to allegations of gross misconduct. The Tribunal considered whether the reason for the Claimant’s treatment was because he had done a protected act in informing the Respondent about the racial harassment. The Tribunal found that whilst it may not have been the sole reason of the less favourable treatment it had a significant influence on the Respondent’s decision-making whether consciously or unconsciously.
Harassment – The Tribunal rejected the Respondent’s defence that it was not liable for harassment as it had taken all reasonable steps to prevent any unlawful discrimination. The Respondent had an employee handbook which contained an Equal Opportunity policy which made clear the Respondent would not tolerate unlawful discrimination and that anyone found to be acting in a discriminatory manner would face disciplinary action which could include dismissal. However, the Tribunal could not find evidence of any training given to supervisory staff on equality or diversity, including Mr Akhtar. The Tribunal held the Respondent could have reasonably taken steps to train and monitor staff but had failed to do so.
Tips for Employees
Although having an Equal Opportunity policy is a good place to start, employers should consider regular training on equality and diversity for all staff, and in particular those in management positions. Employers should also take steps to monitor and record the effectiveness of that training.
For more details on our CPD accredited in house training for managers and bespoke in house training for your workplace (which includes sessions on Equality training, Banter, Unconscious Bias, Directors Duties and key legal responsibilities managers need to know) please contact Claire Brook.
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