Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Appeal allowed in part where a footballer was allegedly subject to racist chants and was dissatisfied with the way in which the club investigated the matter including cutting off contact with his agent.
Claimant: Rico Quitongo
Respondent: Airdrieonians Football Club
Keywords: Race Discrimination; Victimisation
The claimant was informed that a spectator at a match had heard one of the respondent’s supporters shouting racist abuse at his direction. The claimant reported this and the respondent investigated it. During the investigation the claimant’s agent messaged the manager of the football team to say that the claimant was being hung out to dry and being called a liar by the director. The claimant was unhappy with the outcome of the investigation and brought claims relating to race discrimination and victimisation.
At first instance, the Tribunal decided that the message sent by the claimant’s agent was a protected act under the Equality Act 2010 and by cutting off communication with the agent it constituted a detriment. However, the detriment was not due to any breach of the legislation but rather because the respondent believed that the agent was spreading misinformation and mistruths about the claimant. The claimant appealed to the EAT.
The EAT held that the Tribunal had erroneously concluded that the issue relating to the substance of the message, that relating to misinformation, was severable from the protected act. The Tribunal ought to have noted that it would have only lost its protected status if the act was both false and made in bad faith. The Tribunal did not make any finding in relation to it being sent in good faith or bad faith. Accordingly, the subjective view of the respondent believing that there was misinformation was not relevant.
The EAT further examined the claimant’s claims that any of the failings within the investigation directly related to race due to the nature of the extant complaint. This was not the case as stated as any failing in the investigation would need to relate to the protected characteristic. Only one aspect was found to be when relating to a comment that such complaints were being made for publicity. However, there was no finding from the Tribunal about what was actually said in relation to this point so it could not be assessed in terms of whether it was due to race. Accordingly, the appeal was allowed in part with it being remitted back to the Tribunal.
This case provides a useful point in relation to protected acts for the purpose of victimisation. The act of cutting of communication with the agent was regarded as being to the claimant’s detriment and relating to race. It was not sufficient that the respondent subjectively believed that it was spreading misinformation. Instead, the EAT notes that there is a need to show that the point was false and also made in bad faith.
