Black employee ‘compared to a Bounty bar’ will have race discrimination claim heard

24 Jan 2018 By Miriam Kenner

EAT finds original tribunal was wrong to rule race was not the basis of complaint

An Afro-Caribbean employee who was referred to as a ‘coconut’ and a ‘Bounty bar’ has won an appeal against a decision to strike out her claim for direct race discrimination.

The Employment Appeal Tribunal (EAT) ruled that while Cimone Walters’ case may not succeed, a tribunal erred when it did not consider how a hypothetical white employee would have been treated under the same circumstances.

Walters worked for Avanta, a welfare to work and training provider, as a job coach in a central London branch from May 2013 until her resignation on June 2014, which she alleged was a constructive dismissal. 

The employment tribunal struck out her claims of disability discrimination, direct race discrimination, harassment and victimisation, but she appealed. 

In a judgment handed down on 21 December 2017, the EAT’s Mrs Justice Slade allowed the appeal only in respect of the race discrimination claim, finding it may have a reasonable prospect of success. Her other claims remained struck out.

In December 2013, Ms Choudhury, an Avanta manager of Bengali heritage, allegedly threw some chocolates at her team. She “jokingly suggested that she had chosen the chocolates for everyone's personalities and threw Walters a Bounty bar”, adding: "I wasn't trying to say you're a coconut."

Walters said the team did not see themselves as "coconuts" but rather as exotic as many of them shared a Caribbean heritage. The judgment stated that two members of the team asked what a coconut was as they did not understand the reference. Choudhury explained the racial slur and again clarified that she “did not think the claimant was a coconut".

Walters felt uncomfortable as a result of the incident, but did not do anything about it. As the reference to a Bounty or coconut is a “slur used against a black person who is perceived to be behaving like a white person (black on the outside and white on the inside)”, it was considered an “insult towards a black person who is effectively [being] accused of being a collaborator”. It was not a slur about the colour of their skin, the EAT heard.

After Walters had been away sick for 10 days in September 2013, the organisation began absence managing her. After another 13 days’ sick leave in April 2014, and because she had missed key performance indicators, she was placed on a performance improvement plan (PIP).

At this stage, Walters criticised the process and said that all people who the respondent believed to be ‘coconuts’ had been put at a disadvantage. 

The PIP, however, had not progressed by the time Walters resigned following a further unexplained absence in late May. There had been no formal sanction under disciplinary or capability procedure against her, only a verbal warning.

The EAT noted that Walters raised a grievance after resigning, treated as the protected act for the purposes of a victimisation complaint, but did not refer to disability discrimination, and only once to race discrimination – the December 2013 conversation. 

The tribunal struck out the race claim because "there is no white comparator and it is not easy to see how this could be race discrimination". It acknowledged that if Walters had not been black, Choudhury “would probably not have had the discussing Bounty/coconut with her”, but emphasised the “chasm of time” between the December 2013 conversation and the implementation of the PIP.

The judge said that “even Walters does not say the PIP was instituted because she is black".  Apart from Walters’ “after-the-event umbrage at the ‘coconut’ conversation”, she made no reference to race discrimination in her claim form or her grievance, “perhaps because she did not consider the December 2013 conversation to be race discriminatory at the time. When reading the particulars of claim as a whole, the allusion to race discrimination is very light."

The tribunal found that "race and disability discrimination were not the focus of the grievance.” Choudhury did not hear the grievance and, as the only manager likely to be aggrieved by Walters’ accusations, overall Walters “received a sympathetic hearing to her grievance".

Walters appealed, arguing that the judge incorrectly decided that there was no white comparator, failed to consider treatment of a hypothetical comparator and found that the "chasm of time" between the "Bounty bar" incident and the PIP was material. 

Walters submitted that the race discrimination was less favourable treatment because she was black but behaved as a white person. She relied on the phrase “Bounty bar/coconut” not as an act of discrimination itself – but as evidence that she was treated less favourably than a hypothetical white comparator.

Because she was a black person who behaved as a white person, not as a stereotypical black person, she was treated less favourably than a white person who behaved similarly, she claimed: "This is an example of direct discrimination and harassment as it puts all people that [she] believes to be a coconut at a disadvantage.”

Avanta, however, maintained that the tribunal had considered Walters’ claims fully and they did “not get out of the starting blocks". Walters could not argue that she was discriminated against on the grounds of her race, and that being a "Bounty bar" or "coconut" was not a sub-set of Afro-Caribbean ethnic identity. That would be similar to saying that “Scottish or Welsh people who act consistently with traditional stereotypes were a sub-set of British citizens”.

There was no evidence of discrimination against Walters on grounds of her race, whether by being put on a PIP or otherwise, it said. "Apart from [her] after-the-event umbrage at the ‘coconut’ conversation, she made no reference to race discrimination because she did not consider the December 2013 conversation to be race discriminatory at the time.” Walters lacked “a prima facie case of race discrimination” to pass the burden of proof to Avanta. 

The EAT found that a claim may be struck out if it lacks reasonable prospect of success only in exceptional circumstances where the central facts were disputed and the evidence unheard. 

Although the basis of Walter’s claim may have been difficult to understand, “as [she] is black, in my judgment it is strongly arguable that the relevant comparator is a white employee in no materially different circumstances. It is reasonably arguable that the relevant circumstances include that the white employee speaks and behaves as a white person,” the judge said.

“The race discrimination claim may have little prospect of success. However, the [tribunal] erred in concluding that it had no reasonable prospect of success.”

Makbool Javaid, partner at Simons Muirhead & Burton, told People Management that this illustrated that the focus of legal analysis should be on the “reasons for the less favourable treatment and if the reasons are tainted by race. The ET could not understand how the comment was tainted by race, perhaps because both protagonists were non-white.” 

The tribunal should have looked at how a white person, who behaved like a stereotypical white person is expected to behave, would have been treated. Instead, it focused on the fact that the reference to a coconut was not a slur about the colour of the victim’s skin, Javaid said.

Individuals drafting particulars of claim should bear in mind the importance of ensuring that their claims can be clearly understood and are expressed concisely to avoid confusion or misinterpretation, he advised. 

Under section 27 of the Equality Act 2010, claimants must show victimisation by being subjected to a detriment – placed at a disadvantage – because they have done a protected act, in this case alleging race discrimination.

Here, the victimisation claim arose mainly because Walters identified a complaint of failure to deal properly with a post-employment grievance. But the tribunal recognised that a victimisation complaint "was not in the ET1 as the claimant's focus at all". In the EAT, Walters also accepted that there was nothing in the ET1 linking this alleged detriment to a protected act and failed to explain how she had been disadvantaged. 

As Walters could not provide any evidence as to how she allegedly had been disadvantaged by making a discrimination claim, then, rightly, her victimisation claim was struck out as having no reasonable prospect of success, said Javaid.

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