Background: 

The claimant, a black Nigerian, was employed by the respondent as a relief pharmacist.  This was initially for 9 hours per week and was reduced to 7 hours per week.  He also worked as a locum for other employers.  

The case relates to the events of 18th July 2020.   He was assigned to work at a branch in Wickford, Essex.  Covid restrictions were in place at the time and only one family unit was allowed in the store at one time.  The claimant was in charge on that day.   The claimant asked the other two workers if they would help with filing bagged items.  However, they stated it was not their job. The claimant replied that in his experience the team helped the pharmacist to file.  This issue was exacerbated by the fact that some labels were placed on the bottom of small bags meaning that they could not be seen from the shelves.  The claimant asked the other workers if they could reprint the labels and that was met with a refusal because they were ‘serving’.  

An issue arose with a customer who was being served by the two other colleagues.  The claimant overheard, grabbed some paper and asked the patients for their names.  It related to the script being at another pharmacy 5 miles away.   The claimant was described as ‘storming’ around the pharmacy and he telephoned the other pharmacy.  Such a phone call was perfectly normal. The other workers were asked to call the Basildon store but they refused. The situation escalated and one of the workers, Ms Daley, stated that the claimant was being aggressive with a loud voice. She said that she felt unsafe going into a one-to-one meeting with the claimant. This led to Ms Daley becoming upset and a call being made to the store manager. It was also noted that the workers had stated they would report his behaviour to the police.  The manager, without hearing the claimant’s side of the events, stated he was a ‘disgrace’ and that he had to leave.  The claimant subsequently raised a grievance and following its unsuccessful (in the mind of the claimant) conclusion he resigned.  

Outcome: 

The Tribunal found that the conduct of the workers went from dismissive discourtesy to personalised abuse and to a threat to call the police.  These were based upon unsubstantiated allegations.  The claimant was found to have been distressed and humiliated by the actions that were taken.   Whilst the Tribunal concluded that there were no overt racist comments the two workers did characterise the claimant as behaving aggressively towards them.  The Tribunal was concerned by the inconsistent nature of the respondent’s witnesses and found that the allegations were stereotyping the claimant as an aggressive black man.   They agreed that the workers had black friends but that did not mean they could not be discriminatory to another. As a result, it was found that the action of the workers was related to race and the harassment claim succeeded.  

When it came to the constructive dismissal claim, the claimant did not rely upon the actions of the 18th July.  Instead, he relied upon the procedure of the grievance in which no action was taken but for asking the claimant for his availability and then radio silence when that was given.    The Tribunal found that the respondent had a responsibility for ensuring that a grievance is dealt within a reasonable period of time.   Additionally, they found that the meetings should have been organised at the weekend as that was when the claimant usually worked.  Bearing in mind these failings, it was found that there was a breach of the implied term of trust and confidence and the claim succeeded. 

Practical Guidance for Employers: 

This case demonstratesa difficult issue of potential stereotyping and a discrimination claim without overt comments.  In this case, the inconsistent evidence on why the claimant was treated as he was led to the Tribunal finding that it was on the basis of his race.  Perhaps a more pertinent learning point is ensuring that a grievance is adequately dealt with and ensuing that meetings can be held on the normal days of work for the employee.  

The full case can be found here:
https://assets.publishing.service.gov.uk/media/653a234be6c9680014aa9b22/Mr_S_Famojuro_-v-_Boots_Management_Services_Limited___Other_-_3219822_2020___Other_-_Judgment.pdf