A waiter and his husband who were “bullied for months on end” because of their sexual orientation by their colleagues and boss were discriminated against, a tribunal has ruled.
The South London Tribunal determined that the two gay employees, Mr Jeurninck and his partner, Mr Scatena, who was the manager and a shareholder at Piatto restaurant, were victims of direct discrimination and harassment.
The tribunal ruled there was “more than enough evidence” to suggest the director's actions were motivated by homophobia and that “it would be perverse to find otherwise”. It found that Jeurninck and Scatena experienced inappropriate behaviour because of their sexual orientation, which had the “purpose of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.
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Scatena – who owned 30 per cent of the company – and Jeurninck, who wed in July 2017, started working at Piatto in January 2018 and remained there until Jeurninck resigned from his role as a waiter on 18 December 2018, followed by Scatena on 25 April 2019.
The tribunal noted that Jeurninck and Scatena were the targets of homophobic slurs between June and September 2018.
In June 2018, Jeurninck had been setting up the restaurant for the evening shift and running a cleaning cycle on the coffee maker when another director, Fabio Corona, yelled for Jeurninck while laughing and referring to him as a "waitress".
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The panel heard that when Jeurninck complained about the manner he was addressed, one of Corona’s friends responded by saying: “Oh your waitress is very rude” and added “f****** f****t” in Italian. The tribunal said: “We have no reason to doubt what Mr Jeurnick said and accept this at face value.”
According to Jeurninck's witness statement, there were a few weeks of “relative calm” before a colleague, Cugno Garrano, began acting “irrationally”.
Jeurninck said he started speaking to him exclusively in Italian, which excluded him from conversations; however, he understood some Italian and, when it came to speaking, he knew the basics but could not “hold a conversation”.
He explained that when Garrano spoke to their supplier, Giuseppe, he could hear them call him various names. He claims that he was under the impression that they used any pejorative term in Italian to denote his sexual orientation. These conversations were also overheard by a waitress – known as SC – who also worked at the restaurant..
Jeurninck told the tribunal that, on 14 July, while by himself at the front of the house, he informed Garrano that the kitchen staff were looking for him. In response, Garrano “screamed” at him. He said Garrano then murmured in Italian, calling Jeurninck "froccio", which is Italian for "f****t", and left.
The tribunal heard that Garrano threatened Jeurninck by calling his family the "Mafia" and threatening to destroy Scatena's family in Italy. He then indicated with a hand motion that he would perish.
Jeurninck testified before the trial that his heart rate spiked to 206 bpm and that he rapidly grew ill. Garrano told him to cease sobbing before departing. When Jeurninck called 111 later, he was instructed to visit an A&E and advised to wear sensors and wires for a week, and was unable to work as a result. Tests revealed that Jeurninck's heart rates were normal when he wasn't around Garrano, and the panel agreed that there was no reason to doubt what he had claimed.
On 22 July 2018, Garrano came upstairs to the bar with a glass and said: “I thought you people knew how to clean better.” Jeurninck then protested by saying that the only thing on the glass was a fingerprint which could have been his. In response, Garrano remarked: “I am a real man unlike you; I won’t have a little f****t talk to me like this,” and then spat at him.
Jeurninck told the tribunal that after working there for a few months, he began to experience harassment and was frequently harassed about his sexual orientation. Garrano, in particular, would frequently go out of his way to come from the back of house to front of house where he was working to make sure that he felt threatened. He also continued to harass him even after he claimed to have heart problems and be under medical care.
A colleague of Jeurninck’s told the tribunal she had heard Garrano exclusively talking in Italian to exclude Jeurninck – who is dutch – and constantly called him a “faggot” and other homophobic slurs.
On 15 June, SC overheard a conversation in the back garden of the restaurant between Garrano and the other directors, discussing a solution to get rid of both men.
The following week, SC claimed, during a director's meeting without Scatena, they asked Jeurninck to bring them drinks and referred to him as a waitress even though he had explicitly stated that he did not want to be addressed in this manner. They then allegedly called him a "f****** f****t" and laughed at him.
It was revealed before the tribunal that Jeurninck's grandfather was unwell during the summer vacation, and Jeurninck had to travel to the Netherlands to see him because it was clear he did not have long to live. On 19 September 2018, Garrano sent Scatena an email with a WhatsApp conversation from a group of all directors on the day he left. Corona said in the messages: "Maybe I'll put 10 or 20 pounds in the till and we turn on the cameras," but the tribunal noted that there was no prior evidence of Scatena taking money. He was accused of being “dumb", "lazy" and "stealing money from the till".
The tribunal ruled that Scatena was understandably upset when he saw the discussions on WhatsApp as they were insulting and contained homophobic and violent threats.
Scatena told the tribunal that Jeurninck suffered panic attacks that caused him to take unpaid sick leave, that the other directors had made it apparent they planned to fire him, and that they were all plotting to incite physical violence and remove him from the company.
On 18 December 2018, Jeurninck resigned from his position and, in his resignation email, he made note of the money he was owed as well as the fact that he hadn’t received pay since March 2018.
Scatena sent in his resignation by email on 25 April 2019. He stated that there had been an "irreversible breach of trust", adding: "You have created a scenario that is unsustainable and simultaneously denying the truth for months on end," and: "I cannot be part of a firm where I have been bullied months on end."
Furthermore, Scatena claimed that his prolonged absence from pay had put him in "financial ruin" and that he "won't be able under any circumstances to borrow any other money from the company".
Scatena stopped being a shareholder in Piatta on 26 June 2020.
On Scatena’s claims, Judge Green said there was “a sustained campaign that
was motivated by homophobic behaviour to force him out of the business”, and that there were two reasons for the attempt to force him out: “Either because they did not like him or because he was a gay man.”
Green added that in terms of offensive and persistent homophobic behaviour, “we have seen more than enough evidence to support the latter. It would be perverse to find otherwise.”
The tribunal concluded that Jeurninck and Scatena suffered less favourable treatment in comparison to their named comparators and established that they suffered from unwanted conduct as a result of their sexual orientation, which had the purpose of violating their dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment for them”.
Scatena and Jeurninck received compensation of £41,732 and £83,102 respectively.
Kate Palmer, HR advice and consultancy director at Peninsula, said the case served as “an important reminder to employers to proactively facilitate a working environment that promotes genuine equality and inclusion at all levels”, adding that employers should engrain robust policies and procedures at all levels and conduct regular training with staff members.
However, Alan Lewis, partner at Constantine Law, said that, as Piatto was in liquidation it was “highly likely that neither of the two will recover any of the sums awarded to them”. He added that if they had claimed against the directors personally they “may well have had remedies they could enforce against those individuals”.
Piatto, Scatena and Jeurninck could not be reached for comment.