The employer of a man who felt unable to return to work after a co-worker shouted a racist remark at him in a corridor was guilty of racial discrimination for failing to adequately investigate his complaints, a tribunal has ruled.
The HMRC employee was subjected to the insult by an on-site contractor at the tax office where he worked, but the organisation suggested it was more appropriate for the perpetrator’s employer to discipline him and failed to ensure this had been adequately carried out, Manchester Employment Tribunal found.
The case hinged on an incident that took place on 14 June 2016, when a power failure meant the lights went out on the seventh floor of the Trinity Bridge House tax office in Manchester. Mr Jayeola, who had been employed there as an assistant officer since October 2015, was walking through a corridor when a facilities worker employed by G4S shouted at him: “It’s a good thing you’re wearing a white shirt or I wouldn’t have seen you.”
Jayeola made a complaint to G4S following the incident. He attended work the following day but after seeing the worker involved said he felt he “had to leave the building”, the tribunal heard. He did not return to work after that point.
In a meeting on 1 July 2016 with senior managers Mrs Cummings and Mr Crawley, Jayeola said he was unhappy with the time being taken for G4S to investigate the incident. He added he was suffering from high blood pressure and was worried about his mental health.
The tribunal heard he queried why he had received a warning for his time off work when this was directly related to the incident. He also claimed there was a “racist culture on the seventh floor”, citing previous incidents where colleagues had called him “young man” and “bro”, both of which he said were evidence of racism.
Cummings sent out an email reminder of the company’s diversity policies to staff and told Jayeola he could follow a formal grievance route, offering him guidance on how to do so. She arranged two-hour diversity and inclusion sessions for employees to attend.
But she gave no indication that the incident would be investigated or that disciplinary action would be taken.
In a telephone conversation with his line manager, Joanne Legg, on 14 July, Jayeola said he “had no problem with work itself but he was putting himself in a work environment that was putting him in jeopardy” and that “he had been racially abused and nothing was going to happen.”
Legg said the matter was out of HMRC’s hands as G4S was the employer handling the investigation.
On 15 July 2016, Cummings was told that the G4S employee had been interviewed and reminded of his role and responsibilities in regard to the G4S equality and diversity policy.
Cummings was advised by her HR team that if Jayeola was unhappy, he should contact G4S directly. When he said he wanted the G4S employee to either be dismissed or moved to a different location, G4S told HMRC no further action would be taken.
HMRC said it adopted stringent diversity policies and all members of staff were required to undertake training modules in equality and diversity, including addressing unconscious bias, on an annual basis.
But the tribunal found Cummins did not adequately investigate the incident, accepting G4S’s statements at face value. In her evidence, she acknowledged she could have done more to investigate the position involving the G4S employee.
The tribunal held the organisation would have treated a hypothetical comparator – a white person – differently, which constituted racial discrimination.
Employment Judge Porter ruled: “[The employer’s] refusal to remove a known discriminator from the workplace was a clear breach of the diversity policy and shows that [they] simply paid lip service to its declared zero tolerance policy.
“The tribunal is satisfied and finds that Mrs Cummings would [in the case of the comparator] have taken steps to ensure that the G4S employee did not work in the same place as the white employee, to facilitate the white employee’s return to the workplace. Mrs Cummings would have granted the request by the hypothetical comparator that the G4S employee be barred from the premises or the seventh floor.”
The tribunal concluded HMRC failed to prove that the difference in treatment was not because of the claimant’s race. Jayeola was awarded a total of £24,646, including £15,000 for injury to feelings.
Emma Hamnett, partner in the Manchester employment team at Clarke Willmott, said the case highlights how vital thorough investigations are.
“It may have been the case that HMRC could simply have removed the perpetrator immediately under the terms of its services agreement with G4S and asked G4S to send a replacement.
“This could have prevented further acts of discrimination and led the employee to believe that something was being done. However, the manager concerned failed even to see if the perpetrator could be removed under the G4S contract. This could have been a quick and permissible solution. I believe this omission was key here in demonstrating the employer’s investigations and follow-up actions were inadequate.”
Shah Qureshi, employment partner at Irwin Mitchell, added: “Where an employer has a clear zero tolerance policy in respect of race discrimination and harassment, it is vital the employer acts decisively and takes appropriate action.”
HMRC declined to comment on the case.