The claimant, a Polish national, had been employed by the respondent as a commis chef from November 2016 until July 2018.   In May 2017, the claimant was told by another member of staff, Ms Fullerton, to go back to his own country. Following a complaint, the employee apologised and the claimant had a good working relationship with this employee for a short period of time.

This period of harmony only lasted a period of weeks after which the claimant had been referred to repeatedly as a foreigner and that he should go back to his own country.  When he complained to the head chef, she refused to believe the claimant.  The claimant’s points were only believed when they were confirmed by a ‘local’ employee.  This barrage of insults led the claimant to visit his GP where it was noted he had complained to his boss but with no result and he was prescribed anti-depressants.  The level of ill-treatment continued with Ms Fullerton slamming the refrigerator door on the claimant’s arm leaving a red mark.   On complaining, the director only addressed all staff stating they should get on with their work. Ms Fullerton was then suspended on full pay.

In the investigation with Ms Fullerton, she denied the incident involving the fridge door but did say that she had called the claimant a foreigner.  She had the temerity to state that she would continue to call the claimants those names as well. Despite this confession, her suspension was lifted with immediate effect with a final written warning being given. The claimant was not informed of the outcome.  The claimant also complained of another employee who was said to have excluded him from certain aspects of work, that he gave the claimant more duties and had referred to him as a foreigner.

The Tribunal referred to the decision of Elias J in London Borough of Islington v Ladele & Liberty which stated that the Tribunal should consider ‘why’ the claimant was treated as he was.  The tribunal held that the conduct of Ms Fullerton was less favourable treatment in the form of harassment and that it ‘could not have been clearer as to its source’.  The respondent could then not provide any adequate explanation of the treatment.  As a result, it was held that the injury to feelings fell into the middle band of Vento as the situation was permitted and compounded by the respondent.   Furthermore, the respondent could not demonstrate any evidence that the claimant had received any terms and conditions.  As a result, £14,000.00 was awarded for injury to feelings with £1,204.88 compensation for the failure to provide written terms and conditions.

Practical Lessons

This case serves to demonstrate how a business should not respond to accusations relating to race discrimination.  The fact that the employee stated that she was likely to call the claimant names relating to being foreign in the future was not adequately acted upon.   On the ‘why’ question it was clear that the treatment was relating to his nationality. Employers should be cognisant of allowing freedom to make complaints and that they will be acted upon.  Furthermore, the complainant should be kept abreast of any developments, which was not done in this case.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/