A car dealership that dismissed racist language used against one of its employees as “banter” has lost claims for direct racial discrimination and victimisation at Birmingham employment tribunal.
Mr N. B., who identifies as Asian, starting working for car dealership Listers Group as a sales executive at its Coventry Audi showroom in August 2011. In late 2016, he had to bring his two young children to the showroom after his childcare fell through, causing an important customer to complain. Following the complaint, B said the attitude of his coworkers changed, triggering a series of events that led to his resignation.
B was signed off as unfit for work on 28 January 2017, and did not return before his employment had been terminated. He submitted a lengthy grievance letter on the same day, alleging bullying and harassment, sex and race discrimination, breaches of health and safety, and a failure to make reasonable adjustments.
Among the allegations were claims colleagues had referred to him as ‘Apu’ – referencing the character in The Simpsons – made racial jokes, gestures and accents when speaking to or near him, and passed offensive remarks such as “a ma chaud” and “a pane chaud” – phrases that translate to “motherfucker” and “sister fucker” in Urdu and Hindi. He claimed the comments had been dismissed as “banter” by his colleagues, who told him he was being annoying when he sought help.
B's grievance was processed by head of human resources, Phillip Graddon, during which B sought to raise fresh allegations. However, during the grievance process, he was not directly asked about the allegations of racially motivated comments. Instead, the process focused on other less severe allegations, despite Graddon admitting to the tribunal the “chaud” comments were potentially highly offensive and he had failed to look into the issue.
The grievance outcome only partially upheld one allegation – an incident where a colleague had sworn at B in English. During later investigations by the organisation’s operations director, Tim Bradshaw, the “chaud” allegation was again rejected, despite evidence from another colleague who said she had heard the phrases being directed towards B.
Bradshaw suggested B had been complicit in the situation. However, the only evidence to support this came from the main perpetrator, who was ultimately dismissed for gross misconduct over the comments. A grievance appeal brought by B continued to dismiss the remarks as banter.
At tribunal, B made 13 allegations of less favourable treatment, including that he had been denied opportunities because of his race, a claim of harassment related to race, victimisation and a constructive unfair dismissal claim.
The tribunal decided B had suffered victimisation because of failings in the grievance process, while Listers Group had breached the implied term of trust and confidence in employment with a number of inappropriate actions.
Listers Group maintained at tribunal the offensive comments were not racially motivated and effectively no different from other forms of banter in the workplace. Employment judge Broughton described this stance as “almost wilful blindness”.
“It seems to us that if individuals swear in a particular language that can only be understood by those of a particular race and those individuals take offence, then that must be less favourable treatment because of race. It is targeted in terms of the audience, whether consciously or not,” the judgment read.
However, Broughton added B was a highly unreliable witness, stating: “As with many of [the claimant’s] allegations, over time they appear to have been exaggerated and embellished as was the alleged effect that they had on him.”
In particular, his claims he had been referred to as “Apu” were dismissed, as the complaint did not form part of his original allegation and there were no reliable witnesses. The judge also rejected B's claims for constructive unfair dismissal and notice pay.
The tribunal concluded the only possible award could be for injury to feelings, and that any successful claims should be considered in the context of B’s exaggerations. A provisional remedy hearing has been scheduled in case the two parties cannot come to an agreement on their own.