An employer has been left counting the cost after it was found that an employee had been discriminated against on the grounds of race and later victimised when he was dismissed on false grounds.
At the tribunal, the employer admitted to knowing nothing about correct procedures, ACAS guidance, or unfair dismissal. This case is a reminder of how important it is for employers to take discrimination complaints seriously and manage them appropriately and correctly.
How does discrimination compensation work?
In outline, if an employee is found to have been discriminated against an employment tribunal can award compensation for injury to feelings. This is compensation for the hurt and upset the employee has suffered.
Since it is difficult to quantify hurt and upset, there is guidance in place for how much compensation may be awarded in respect of injury to feelings.
This works by categorising the discrimination into bands with an upper and lower limit, the tribunal identifies the band it considers the discrimination falls into and makes an award within the limits for that band. The limits on these bands are changing.
Facts of the Case
According to the Massamba v IKB Travel & Tours Ltd case, the employee was called a ‘black monkey’ in the office by a co-worker in front of witnesses.
The next day the employee told the general manager how upsetting he had found the incident and that he wanted the Managing Director to be informed.
He was told it was no big deal and it was suggested the Managing Director shouldn’t be notified. The employee later emailed a formal grievance to the founder of the business and copied in the general manager, both of whom were abroad at the time. He got no response.
Shortly after this, the employee went off sick for a few days.
On his return he was called into a meeting with the Managing Director and was dismissed with immediate effect. He was told that he had not grown into the role and the job was not right for him.
The employee appealed, arguing that the real reason for his dismissal was that the company didn’t want to deal with the race discrimination issue, so they had dismissed him on spurious grounds instead. He received no response to his appeal.
Ensure you operate a thorough investigation and respond to any appeal you might receive. Read “workplace investigation – what employers need to know” to get guidance.
The employee complained to an employment tribunal about how he had been treated, and they found the comment made to him by his colleague was race discrimination.
The employer tried to argue that the racist comment had never been made, but they asserted the employee had fabricated the story about the comment because he knew his employment was precarious due to his poor performance and that he set up the false allegation in order to obtain compensation.
The tribunal found no evidence to support this and described it as a fanciful theory.
The tribunal also held that the employee’s dismissal was an act of victimisation – that the real reason for it was that he had raised a grievance about race discrimination.
The tribunal did not accept that the Managing Director had not read and was not otherwise aware of the grievance that had been raised.
The tribunal found that had the employee not made the discrimination complaint there was no reason to think that he would have been dismissed in the circumstances.
It was also found that the failure to communicate an appeal outcome to the employee was a further act of race victimisation.
Discrimination Advice for Employers
If you receive a complaint about discrimination of any kind in your organisation you will usually need to invite the employee to attend a grievance meeting, thoroughly investigate the grievance and give the employee a written grievance outcome explaining your decision and a right of appeal.
It’s important to take advice on the facts of your case if an employee raises a grievance.
If wrongdoing is found, you will need to take appropriate action, this is often disciplinary action against those who have engaged in discriminatory behaviour.
It’s important to remember that as highlighted by this case, employees who raise a complaint about discrimination are protected from being victimised so they shouldn’t be dismissed or subjected to any other detriment because they have raised a grievance.
Ensuring that employees have received appropriate anti-discrimination and harassment training can help to reduce the likelihood of issues arising in your organisation.
It’s also important to ensure that managers/directors are appropriately trained when it comes to recognising and preventing discrimination and harassment and that they are aware of how to handle such matters if they do arise.
Had the employer in this case taken such measures they may have prevented this case from arising.
If you feel your employee hasn’t acted appropriately, you should contact us for advice on the facts of your case.
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