A council employee has won his claims of racial harassment after an incident where his supervisor made racist remarks towards him as they drove to a job.
The Leeds employment tribunal (ET) found that Mr A Leader, an environmental action operative employed by Leeds City Council, suffered “clearly unwanted” comments about his own race, the colour of his skin and the nationality of others that amounted to racial harassment.
In what lawyers described as an ‘unusual’ move, the ET dismissed claims against the council itself after ruling that the employer had shown it had taken all reasonable steps to prevent the supervisor from making racist comments to fellow employees. The case proceeded instead against the individual supervisor who made the remarks.
Leader, who described himself to the tribunal as a black Afro-Caribbean man, was working with supervisor and assistant chargehand Andrew Hossack on 9 February 2018. The tribunal heard Leader was a passenger that day in a works vehicle driven by Hossack.
- Airport was not liable for employee’s racially offensive Facebook image
- Ethnicity pay gap as high as 20 per cent for some groups
- How to prevent discrimination claims
As the vehicle was pulling into Kirkstall waste management site in Leeds at 9am, Leader and Hossack were listening to the news on the radio when the broadcaster announced that the temperature was -11°C at the Winter Olympics.
Leader then told the tribunal Hossack said: “If you think it’s cold here, you should take your black arse over there.”
The tribunal heard that Leader looked at Hossack “with astonishment” before Hossack responded: “Your arse is black isn’t it?” Leader answered that it was “the last time I looked”.
The vehicle then pulled up behind a lorry with a Polish registration plate. Leader said the lorry was taking a long time, and told the tribunal Hossack said “these f***ing foreigners”, to which Leader responded that Hossack sounded “like a racist”.
Leader then informed Hossack he was not feeling well and asked to be dropped off at the nearest point to his home. As he was leaving the vehicle, Hossack asked what he should tell their line manager about Leader going home, and Leader said he could tell her “what you f***ing like”.
Hossack did not attend the ET and no evidence was provided in his defence, but the judge decided Leader’s evidence was “coherent, credible and convincing” and accepted it as fact.
Leader said after the incident he received a call from the line manager asking him to return to work, but he described himself as being unable to do so because he was not in the right frame of mind. He told the manager what had happened
He returned to work as normal on his next shift. He said he was very upset about what had happened and considered Hossack to be a racist who he was not happy to work with again.
Leeds City Council spoke with Leader about the incident twice, once on 12 February and again on 22 February. The council confirmed that the incident was being dealt with under its disciplinary policy, and Leader would not be required to work with Hossack.
However, Hossack was not suspended or relocated. Leader did not receive any further communication from the council and subsequently submitted a grievance on 12 April.
Leader told the tribunal he had been concerned that Hossack might be successful in applying for a vacant chargehand position, as it would mean Leader would have to ring him every morning for instructions. The tribunal heard that the prospect of talking to Hossack made Leader feel anxious.
He added that he felt worried and isolated from his colleagues, and his anger reactivated when he saw Hossack at work “all the time”.
Leader initially brought complaints of racial discrimination and harassment against both Hossack and Leeds City Council. But the claims against the council were dismissed as Leader, at a prior preliminary ET hearing, accepted that it had shown it had taken all reasonable steps to prevent Hossack from making racist comments.
The tribunal heard evidence that Leeds City Council had investigated Leader’s allegations relating to the racist comments, and the matter was referred to a disciplinary hearing to consider a charge of gross misconduct. However, Hossack resigned before any disciplinary hearing.
The Leeds ET did, however, rule that Leader had been subjected to racial discrimination from Hossack, and ordered Hossack to pay him £2,769 for injury to feelings plus interest.
Glenn Hayes, partner at Irwin Mitchell, told People Management the case was unusual as complaints against the employer had been dismissed very early on.
He added that it was, in his opinion, “quite refreshing” to see an employer not have to go through an ET when it had followed the correct procedure.
“It seems like at the preliminary hearing the tribunal determined there was no case against the council, and there was enough proof to show they had taken all reasonable steps to show what they did do,” Hayes said.
“What this usually involves is showing that employers have a good equal opportunities policy, provide training on that policy to staff, and keep staff up to date on this training and policy, as well as proof they take action when complaints are brought to their attention – which it looks like they did.”
Kate Palmer, associate director of advisory for Peninsula UK, agreed that it was rare for the employer to be discounted from proceedings.
But Palmer added that the removal of the employer from the ET proceedings did not take away from the fact that an employee was still subject to unlawful harassment: “It simply allows for a determination of who is really at fault."