Employee told to ‘go back to Poland’ suffered direct race discrimination

A single comment in the workplace can amount to employer liability

A worker who was told he should ‘go back to Poland’ by a colleague was the victim of direct race discrimination, for which his employer was liable, a tribunal has ruled.

Mr Nazarczyk, a Polish employee of Liverpool-based retailer TJ Morris, claimed that he was subject to a number of discriminatory behaviours from his colleague, John Cowley.

The allegations included his annual leave being denied unless he gave Cowley a bottle of vodka, his clean clothes being dumped on the floor by Cowley, and general observations about how British and non-British staff were treated differently in the warehouse where they worked – such as foreign staff working on different shifts from other staff.

Because Cowley denied these allegations, and as the tribunal was not supplied with specific supporting evidence, it failed to establish any racial discriminatory feeling behind the conduct. However, a single comment Cowley made to Nazarczyk while they worked a night shift in October 2016 was found to amount to direct discrimination, as it linked unfavourable treatment directly to his Polish nationality.

Nazarczyk had asked Cowley if his daughter could work on an evening shift in the warehouse with him, saying he did not want her walking home in the dark after 11pm through an area of Liverpool he deemed unsafe. If they worked on the same shift, Nazarczyk would be able to accompany his daughter to and from work, and ensure her safety.

The request was denied, with Cowley alleging that, when Nazarczyk had worked with his daughter in the past, both their work suffered because Nazarczyk tended to spend time looking after her in the workplace. However, as the discussion escalated, Cowley allegedly said: “If you do not like it, pack yourself and your family up and go back to Poland.” In a further allegation, Nazarczyk said Cowley used the words: “You should go back to your own country.”

Following the comment, Nazarczyk filed a grievance, which was rejected by two members of senior management who nonetheless apologised for Cowley’s behaviour.

The tribunal, however, found that Nazarczyk had suffered direct discrimination on the grounds that Cowley would not have said “if you do not like it here go back to Poland” to a hypothetical British worker – rendering the comment not only inappropriate but discriminatory.

Cowley defended himself by claiming that if he had been speaking with someone from Bath he would have suggested they ‘go back to Bath’ – but the tribunal found the comparison with telling someone who perhaps lived in Bath to go back there was not the same, as it lacked any racial connotations.

The ruling serves as a warning to employers that a single inappropriate comment in the workplace can amount to a successful claim for direct race discrimination, even if more serious alleged behaviours fail to meet the criteria.

The Equality Act 2010, and Acas guidelines, specify that direct discrimination takes place when someone is treated ‘less favourably’ because of their actual race, perceived race or the race of someone with whom they associate. Indirect discrimination occurs as the result of a policy, practice, procedure or workplace rule that applies to all workers, but particularly disadvantages people of a particular race.

However, legal principles stipulate that the discriminatory treatment must be proved to be the result of a protected characteristic for a claim to be successful; in a case earlier this year, two Nigerian employees lost a claim of direct discrimination, including allegations of racist verbal abuse, after a tribunal found they were mistreated because they were illegal immigrants, as opposed to characteristics specific to their race.

The tribunal instructed TJ Morris – one of the largest privately owned companies in the UK, employing more than 17,000 staff in 400 stores – to implement diversity training, and for Cowley to apologise to Nazarczyk, ahead of an upcoming remedy hearing.