The Leeds employment tribunal (ET) has ordered a manager to pay over £2,600 to two staff members after he was found to have made an allegedly racist comment in the workplace.
Two employees at Capita Retail Finance Services Ltd brought a claim of racial harassment against their employer and their manager, Mr J Woodhouse, following an alleged comment made by Woodhouse about a staff member’s skin colour.
The two claimants, Miss S Kaur and Miss S Rehman both worked for Capita Retail Financial Services, were both of Asian ethnicity and worked in operations, with Woodhouse as their operations manager.
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The tribunal heard that on 16 January 2019, Woodhouse had been walking past the claimants’ bank of desks, where a white colleague was sitting in a seat usually occupied by a black member of staff called Mattar. He allegedly said to the white colleague: “Has Mattar been dipped and had his head shaved?”
Kaur told the tribunal there was an awkward silence for about 10 seconds following the comment, and that Woodhouse “seemed to find the comment funny”. Both her and Rehman reported being “shocked” by what he had said.
When asked by the tribunal whether she understood Woodhouse’s comment to be racist, Rehman said that she had, and that the members of staff present were all shocked about the comment. She said that they all “discussed between [themselves] and said ‘did that actually happen?’.”
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Woodhouse denied having made the comment then or at any other time. However, he later suggested that he may have referred to a football “strip” or “kit”, and been misheard.
The tribunal heard that before the incident, Woodhouse’s professional relationship with Kaur had already “significantly broken down” – to the point where Kaur said she “did not trust having a one-to-one conversation with him without a witness present” – because of the way Kaur perceived she was treated by him. Kaur had also been put under performance management by Woodhouse.
On 4 January, prior to the incident, Kaur had requested a shift change, citing Woodhouse’s behaviour and her feelings towards him as the reason for wishing to move. But Kaur told the tribunal she did not believe his treatment of her to this point was connected to race.
Following the alleged comment, Kaur said that she was clear that she could no longer work with Woodhouse. She raised a written grievance on 21 January, citing primarily her previous issues with Woodhouse, which she described as bullying and harassment, and at the end of the grievance letter also raised the issue of the alleged comment on 16 January.
Kaur was interviewed in respect of her grievance on 4 February, and Rehman, who was also present when the alleged comment was made, was also interviewed as part of the internal investigation on 18 February. She echoed Kaur’s testimony, and said she found the comment offensive.
She told the tribunal that she understood that people could sometimes make mistakes in the way they spoke, and that if Woodhouse had recognised the problems in his language and apologised, she would have thought that to be fair enough. However, she said that the fact that he denied having made the comment at all had annoyed her.
Two other colleagues were also interviewed as part of Capita’s internal investigation. One responded that they hadn’t witnessed anything of a racist nature, while the other confirmed the comment, and said he had been “gobsmacked”.
When Woodhouse was interviewed about the incident, he denied having made the comment, and took “great offence” at the allegation of having made a racist comment.
While the internal investigation didn’t uphold any of Kaur’s claims of bullying and harassment by Woodhouse, the staff member carrying out the investigation concluded that on the balance of probabilities, Woodhouse was likely to have made the comment.
Kaur was subsequently assigned a different manager and, following separate requests, both she and Rehman were moved to an alternative shift pattern.
Capita suspended Woodhouse pending a disciplinary investigation. Woodhouse was subsequently absent from work due to sickness, and hasn’t yet returned, therefore the disciplinary process has yet to take place.
The tribunal described the evidence made by the claimants as clear and convincing, and ruled that the incided did happen.
It was found that, while the comment fell short of gross misconduct, as it was a one-off incident and out of character for Woodhouse, it clearly amounted to “unwanted conduct related to race”. The tribunal noted that although it was not Woodhouse’s intention to create a hostile or offensive environment, it was “clear that it did”.
However, the employer was found to have taken all reasonable steps to prevent this incident, and was therefore not liable for any act of unlawful harassment. The tribunal ruled: “Capita did not just have comprehensive policies in place. It communicated them, trained all employees on them an updated that training annually.” If found that Capita was therefore not liable for any act of unlawful harassment.
The tribunal ordered Woodhouse to pay each of the claimants an overall sum of £1,321.15, which included £1,250 to compensate for injured feelings, plus £71.15 in interest.
Mizan Muqit, general secretary and co-founder of the Equality for Workers Union (EFWU), which supported the claimants, described the ruling as a "gamechanger" as it showed named individuals could still be held liable even if the claims are not upheld against the employer.
"As this case proves, by having named respondents they cannot escape from discriminatory and illegal acts committed against individuals," said Muqit.
Following the ruling, Kaur told the Telegraph and Argus that she was "really happy with the outcome,'' adding that “it just shows that justice is served.''
A Capita spokesperson said: “We are pleased with the tribunal’s judgment that Capita was not liable and that we take all reasonable steps to avoid this type of behaviour, which clearly falls below the standards we expect.”
Woodhouse could not be reached for comment.