Cleaner’s racial harassment claim dismissed after colleague described black customers as ‘coloured’

Judge concludes claimant was not harassed following older coworker’s use of outdated term he believed was ‘polite and genuinely descriptive’

A cleaner’s claim for harassment related to race following an older colleague’s use of the term ‘coloured’ to describe customers has been dismissed.

The remote tribunal ruled that the term was not used “gratuitously” or with “any other negative connotations that might have disclosed prejudice”.

It added that the outdated term was used because it was believed to be less offensive than referring to the customers as ‘black’, and that while this did not mean it was “any less appropriate” to use nowadays, the language was once used “descriptively” by people of a “certain age” who “genuinely felt it to be a polite term”.

Ryan Justin, who described himself as a black man, was employed by facilities management company Atlas to undertake cleaning services at PureGym in Derby from 18 December 2019 until his resignation on 8 February 2020.

The tribunal said that Atlas had no diversity and equality training available to employees, aside from “some form of self-directed reading kept in the local sites” with no monitoring of what was being undertaken by staff.

On 5 February 2020, Justin noticed that a colleague, Markham Pell, had left a note in the company’s comment book – which was used to log areas that need additional cleaning and matters of lost property – saying that “three coloured guys were messing around (i.e play fighting and not really training)”.

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The tribunal noted that the information came from an off-duty coworker who was using the gym at the time and relayed the information to Pell, but added it did not know why the race of these individuals was relevant.

The tribunal also heard that Justin and Pell got on well and predominantly worked night shifts together. It noted that Pell was an “older man” with “vulnerabilities” including depression and anxiety, who chose night shifts so he didn’t come into contact with many people.

He described his upbringing to the court as “old fashioned” and said he had previously been “anxious” about describing anyone as “black”. 

Justin told the tribunal that “things like this happen all the time” and decided to talk to Pell in a “spirit of educating” to explain why the term was offensive to a black person, but did not report his concerns to a manager or HR. The tribunal said the accounts of this discussion differed “wildly”, but what was originally intended by Justin to be an educational talk became “closer to one of confrontation”.

On 8 February 2020, when they were both next on shift together, Pell was due to train Justin to use a piece of equipment but Justin refused, saying he was “not interested”. When Pell asked why, he explained that the entry made in the comments book was a racial term. The tribunal heard that the situation had quickly become “tense” and Pell’s anxiety was physically manifesting with him shaking as he tried to explain himself.

Pell told Justin he didn’t understand the term to be “nasty or upsetting”, adding that he was “not being racist”. Justin also told Pell he had met “people like him” in prison and could either “knock him to the ground right now or walk out".

Justin sent his letter of resignation to his manager with immediate effect on the same day, in which he said he refused to work with Pell and that he would rather “walk out than get into any conflict”. Justin also contacted an HR advisor the following day who gave him a week to think about his resignation and whether he wanted to raise a grievance, but Justin did not reply.

Judge Clark concluded that the case did not amount to harassment as Pell’s comments were not made against Justin personally or used in the context of banter.

He said: “What was said by Mr Pell was borne out of the very same ignorance and naivety, that Mr Justin himself originally identified, had led Mr Pell to use the term in the first place and which he felt warranted a response of educating,” adding that had the discussion taken place in measured circumstances, the course of exchange would have been “quite different”.

Sandra Kerr CBE, race equality director at Business in the Community told People Management the tribunal highlighted the need for training in organisations on race.

“We strongly encourage employers to organise training and start conversations at work,” said Kerr. “But like a shy student in the classroom, we can’t address these challenges if people are afraid to talk about them. We’re calling on employers to create safe spaces and produce a culture of openness to have honest conversations about race.”

Andrew Willis, head of legal at Croner, said the case highlighted that education on race could reduce disagreements among employees.

“Despite the favourable ruling, this still led to the company losing a member of staff over what seems to have amounted to a misunderstanding,” said Willis, adding that companies should implement training so staff can be informed of what is acceptable “alongside the consequences for going against this”.

Atlas has been contacted for comment. Neither Justin nor Pell could not be reached.