Ever since the UK voted to leave the European Union there has been an alarming rise in racially motivated violence and hate crimes. It’s been reported that, in the weeks following the Brexit vote, over 3000 racist incidents have taken place all over Britain affecting people online, on the streets, at schools and at work.
Feeling safe and protected is a right that everyone is entitled to and it is essential that employers emphasise that discrimination in the workplace will not be tolerated, condoned or ignored.
Just recently, an Employment Tribunal has confirmed the wide coverage of race discrimination protection in a case which threw out a string of excuses made by an employee to explain away his use of a racist remark. The employer was entitled to dismiss the employee even though it was a single remark and the target of the remark was not present when it was made.
In Mann v NSL Ltd, the employee (Mann) was talking to a group of white male colleagues about a darts match he had played in. He referred to his female black opponent as a “n***** girl”. The opponent did not work for the same employer and therefore was not present during the conversation. The incident was reported to management by a white female colleague who had overhead and, following an investigation, Mann was dismissed for breaching the employer’s diversity policy.
“There is no requirement in the Equality Act 2010
that the person complaining of feeling intimidated
by a racist comment be of the race targeted by the comment.”
Mann said that the term was ‘street talk’ he commonly used to his friends and so it was not meant in an offensive way. He also said that he did not realise that anyone could hear the conversation outside of his white male colleagues. Therefore, he said, dismissal was too harsh a sanction.
The Tribunal declared the dismissal to be fair. It said “The way in which the respondent reasonably believed the claimant had used the word was highly offensive. It was clearly in breach of the respondent’s diversity and equality policy. The facts that the claimant may not have intended to offend and offered some apology do not mean that it was not open for the reasonable employer to dismiss. Equally, the fact that the comments were made in the presence of only white people does not mean the dismissal was outside the band of reasonable responses.”
Wide scope of protection
There is no requirement in the Equality Act 2010 that the person complaining of feeling intimidated by a racist comment be of the race targeted by the comment. The white female colleague in this case, therefore, could make a valid complaint that she had suffered racial harassment in relation to a comment made about a black individual. In consequence, the employer was able to use this complaint to accuse Mann of breaching their diversity policy.
Additionally, there is protection for individuals to claim they have been discriminated against in relation to a protected characteristic that they personally do not possess. For example, because an employee associates with someone who has a protected characteristic (associative discrimination); and because others perceive that they have a protected characteristic (perceptive discrimination).
What can employers learn from this case?
- Disciplinary action can still be fair although an employee does not mean to offend;
- Disciplinary action can still be fair although there is no-one present who possesses the characteristic targeted by the abuse;
- An equal opportunities policy is essential to let all parties know that you do not tolerate discriminatory behaviour;
- A single remark is sufficient to breach such a policy;
- An investigation, as always, is vital to gathering information upon which to form a reasonable belief that the employee acted in the way alleged.