An engineer of Caribbean origin who claimed his colleagues subjected him to racist remarks in the workplace has been awarded more than £11,000 after a tribunal found he was the victim of direct racial discrimination.
Vernon Edwards said his accent was regularly imitated in an environment where offensive jokes were commonplace. But the tribunal did not find that comments made by coworkers about Adolf Hitler specifically constituted racial discrimination.
Edwards worked as a wheelchair engineer for Hertfordshire County Council for three-and-a-half years, transferring to full-time employment after initially working for the organisation as an agency worker.
He began logging complaints about his treatment after Andrew Mawbey took over management of his team in 2014. Mawbey had introduced rigorous timekeeping standards, which Edwards regularly failed to meet.
Early in 2015, Edwards was told by Mawbey that his poor timekeeping would lead to a disciplinary, which Edwards attributed to racial discrimination on the part of Mawbey. On 16 March 2015, he submitted a lengthy grievance to his employers that broadly claimed he had endured a “campaign of harassment” since Mawbey began running the department.
Among other complaints, he raised issues of racial discrimination, stating: “I have to put up with certain colleagues mocking my accent (they do this in front of Mr Mawbey) and Mr Mawbey did nothing about it other than to laugh and smirk at staff making racial comments.”
A meeting to address the grievance was scheduled for 20 April 2015. Notes made by the investigative officer, Ms Brinkley, found that Edwards was non-specific about which of his colleagues had mocked his accent and made racial comments, as his chief grievance was against his managers, who he said had condoned the behaviour by failing to intervene.
However, when pressed, he said one of his colleagues, Dave Durrant, had told him to “speak English”, made remarks alluding to being pro-Nazi and allegedly said: “Hitler wasted his gas on the Jews.”
When Durrant was later questioned on whether Edwards had to put up with colleagues mocking his accent, he was recorded to have said: “Everyone has a bit of fun, no one definite [...] It’s just banter; it happens rarely, in a happy way.”
When asked about making racial comments or jokes in the workplace, he said: “I can’t think of any, not definite; it would be jokey. Not to harm others [...] I’ve never spoken to [the claimant] and he has never spoken to me about it. I don’t think there’s been anything serious enough to complain about. I’ve never known anything to be directed at Vernon, not while I’ve been there.”
Durrant’s comments were noted as significant by the tribunal, as they suggested that he accepted the broad allegation of a workplace where jokes crossed a boundary into an unacceptable area, and did not respond to the questions with anything suggesting shock or denial. Mawbey denied in detail each allegation made against him in the grievance process, and passionately asserted his commitment to diversity in his personal and professional life.
In her report on the grievance process, Brinkley concluded: “There is no evidence to substantiate the claim that [Mawbey] allows racist remarks and behaviour to occur. On the balance of probability, this does not happen. I believe that it is likely that such jokes and remarks do occur and although the complaint is not directed at peers, management need to tackle this. This part of the complaint is unsubstantiated.”
She went on to recommend that staff awareness be developed around diversity and inclusion practices.
Edwards appealed the decision, but this was overturned, and on 16 September 2015 he resigned with immediate effect, citing reasons that included: “Work-related stress; bullying and harassment; discrimination; unreasonable amount of delegated work; arbitrary and capricious; breach of trust and confidence; last straw doctrine; breach of health and safety”
He brought his employers to Watford Employment Tribunal in August 2017, for a number of claims that included direct racial discrimination, racial discrimination, victimisation and constructive unfair dismissal. His claim for direct racial discrimination was the only one to succeed.
Under the Equality Act 2010, the tribunal had to consider whether or not Edwards had been treated less favourably than a hypothetical comparator, and concluded: “We find that the detriment (imitation of the Caribbean accent) took place, and that Mr Durrant (and others) did not imitate the accent of any other person who was not of the claimant’s race.
“In our judgment, the only complaint upon which we can find that the claimant was treated less favourably than a hypothetical comparator not of Caribbean origin, and which we have found on balance of probabilities to have been corroborated and upheld, relates to the imitation of the claimant’s accent.”
The tribunal noted that had a claim for racial harassment, rather than direct discrimination, been brought, this outcome might have been different.
“A finding that comments about Hitler and the treatment of Jews were not race discrimination, but the imitation of an employee’s Caribbean accent was, may be surprising to some. However, the finding is based on the technical application of the law for the specific claim made by the claimant, and not a judgment on whether comments about Hitler actually constitute unacceptable language,” Alan Price, director at Peninsula Employment Law, told People Management.
“The claimant made a claim of direct race discrimination, which required a judgment of whether his treatment – both accent imitation and comments about Hitler – had resulted in his less favourable treatment when compared to someone not of Caribbean origin. The tribunal had no difficulty in concluding that discrimination had occurred when his accent was imitated.
“However, in order to conclude the same regarding the Hitler comments, it also had to find that he had been treated less favourably than someone else not of Caribbean origin. It could not hold that this had happened.”
At a remedy hearing in February 2018, Edwards was awarded a total of £11,505.32 in compensation for direct racial discrimination, made up of a principal sum of £8,500.00 and interest of £3,005.32.
A spokesperson from Hertfordshire County Council commented: “Hertfordshire County Council fully accepts the judgement of the tribunal. The judge recognised that we were not aware of the behaviours Mr Edwards experienced at the time of the offences but as soon as it was brought to our attention we immediately investigated and took action.
We take issues of diversity and equality very seriously and we will be examining the details of this case to see what lessons can be learnt. The perpetrator is no longer employed by the county council.”