The Department for Work and Pensions (DWP) has been ordered to pay more than £370,000 to a former employee who was subject to discriminatory behaviour and harassment related to her age and race.
The Cardiff Employment Tribunal heard Anne Giwa-Amu faced treatment that made her feel “entirely rejected, ridiculed and isolated from the rest of the group”, during a month-long induction for the role of administrative officer at the DWP’s offices in Caerphilly, South Wales. Giwa-Amu faced multiple incidents that amounted to harassment, including racist comments from colleagues.
The tribunal also criticised the DWP’s equality and diversity training as “not fit for purpose”, and ordered the government department to seek advice from the Equality and Human Rights Commission (EHRC).
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A claim of sex discrimination failed, however.
Giwa-Amu was employed by the DWP in February 2017 as part of a cohort of new recruits undertaking a month-long induction. At the time of her employment, she was 55-years-old and she describes herself as of Nigerian-Welsh origin. Among the group of nine trainees she was the only non-white recruit and the only trainee over 50-years-old.
The tribunal heard that, for some of the trainees, this was their first ‘proper job’. There was “a lot of banter” in the group and it was found that some members “did not always behave in a professional manner”.
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Giwa-Amu claimed she was targeted repeatedly and faced multiple instances of “unwanted treatment” from colleagues. One used the racially offensive term ‘P*** lover’ in conversation around Giwa-Amu, and told Giwa-Amu it was racist to say it always rained in Wales – which the tribunal said would have had the effect of trivialising discrimination.
Giwa-Amu also claimed she faced other incidents of bullying, including being wrongly accused of stealing and having deodorant deliberately sprayed around her after she had complained about someone else spraying deodorant.
Things came to a head on 9 March following an incident where Giwa-Amu believed two trainees were making gestures about her across the room.
Giwa-Amu left the room in distress and when the trainer in charge of the group’s induction, Nicola Foley, followed her to speak with her, Giwa-Amu revealed she was being bullied by her deskmate because of her appearance. But Giwa-Amu asked Foley not to escalate the matter.
Foley told the tribunal she did not remember Giwa-Amu talking about bullying, but the tribunal found Giwa-Amu’s version of events more compelling.
The tribunal heard that, later the same day, Foley approached Giwa-Amu’s deskmate and told her to be mindful of her behaviour towards others. She also spoke to the whole group the next day, when Giwa-Amu was not present, about the importance of respecting each other. Giwa-Amu was embarrassed and upset that the trainer had taken these actions, the tribunal heard, and believed this had made the situation worse.
The following day (10 March), when Giwa-Amu said goodbye to some trainees at the end of the day and one replied she would see her on Monday, a second colleague added: “If she comes back.” This followed another incident the same day in which the same colleague loudly said “I touched Anne’s bum”, after he accidentally brushed past Giwa-Amu in the office.
The tribunal found the comment at the end of the day was “a nasty comment that proved to be the final straw” for Giwa-Amu. On 12 March she submitted a grievance headed “formal complaint of bullying and racial harassment”, detailing her experience. She was then signed off work because of stress.
On 5 April Giwa-Amu was informed in writing that her grievance had not been upheld as, following interviews with her fellow trainees, it had been concluded there was “no malicious intent to cause offence”, and that “the context in which [the events] occurred have not been interpreted as offensive or intimidating by anyone else”.
Giwa-Amu appealed this decision, but the appeal was unsuccessful. In the appeal outcome notice, she was informed that, in respect to her claims of age discrimination, “you did not actually tell your colleagues at any time how old you were”, and that it was “part of human nature” for individuals to form opinions based on such matters when they met someone.
Giwa-Amu took the case to the tribunal in June 2017. In September that year, she was invited to an attendance management meeting, which she didn’t go to as she didn’t receive her letter of invitation. She was dismissed by letter on 4 October, as she had not been able to return to work within a reasonable timescale.
Her dismissal was not considered as part of the tribunal proceedings but was taken into account when assessing the remedy.
While the tribunal noted that much of the behaviour towards Giwa-Amu didn’t expose her to detriment, it concluded such behaviour would not have been directed towards her had she been white and of a similar age to the other trainees. It also noted she had been exposed to a range of unwanted conduct that amounted to harassment as a result of her age and race.
The tribunal stated: “None of the DWP managers appeared to appreciate the impact discrimination and even perceived discrimination can have on an employee.” It said neither of the grievance investigators “appeared to understand that harassment can occur when conduct is having the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for an employee (regardless of the other employee’s motive)”.
The DWP was ordered to pay Giwa-Amu £376,059 in compensation in respect of injury to feelings, lost earnings and future losses. The tribunal also ordered the DWP to approach the EHRC and seek its assistance in reviewing the DWP’s equality and diversity awareness training by May 2021.
Kate Palmer, associate director of advisory at Peninsula, said the case represented an “extreme example” of how employers could be liable for discriminatory behaviour carried out by staff. She warned that while the DWP reacted poorly in this case, “this liability can also arise even if management is unaware that such behaviour is taking place”.
“A zero-tolerance approach to this sort of behaviour must be maintained through clear company policies on bullying and harassment. If any complaints are made, they should always be investigated thoroughly and responded to in line with these policies,” she said.
A DWP spokesperson said: “Racism is totally unacceptable and action will be taken against any staff found to be expressing such views… We take the judgment and the circumstances of this case very seriously.”
Giwa-Amu told the BBC the DWP was “paying lip service to the equality legislation”, but that the tribunal’s decision came as a relief.