culture of racist banter does not protect employer

In Queenscourt Ltd v Nyateka the EAT upheld a tribunal decision that an employee was not precluded from bringing a claim for racial harassment despite a high level of racist banter in the workplace in which the employee had allegedly engaged.

N, a black woman of Zimbabwean origin, was employed by Q Ltd as a team leader in a fried chicken restaurant where there was a lot of sexist and racist banter among staff, including N. It was not regarded as acceptable for white employees to take part in this banter.

N raised concerns with her manager, A, relating to her pay. N then discovered that she had not been invited to a management meeting which she would normally have expected to attend. She asked A whether she could go along and, when he refused, demanded to know why. A initially said that she would be disruptive by raising pay related issues. When questioned further, he said: ‘Maybe it’s because I’m being racist to a black woman.’

N brought a grievance in respect of A’s comment and was suspended without pay while an investigation took place. Q Ltd later claimed that N did not receive pay during her suspension due to an administrative error. A was not suspended at all. The result of the investigation was that N’s complaint was upheld and A received a written warning.

Q Ltd wrote to N setting out the results of the investigation and she was invited to return to work. She did not return and did not contact the company. After a few weeks, the company, believing that N had decided not to return, sent her her P45, and her employment ended.

N brought a tribunal claim alleging harassment under the Race Relations Act 1976 in relation to A’s comment, and less favourable treatment on the ground of her race arising from the company’s subsequent conduct.

The EAT held that while N herself may have engaged in racial and sexist banter this did not alter the fact that A’s behaviour had been discriminatory and amounted to harassment, even though it was an isolated incident.

In respect of differential treatment, the EAT noted that N had been suspended from work without pay while A was not suspended, and nor was any of his pay deducted. The EAT held that was sufficient to raise an inference of discriminatory treatment which had not been rebutted.

Protecting your business – how this affects you.

Racist and sexist banter can lead to substantial awards. This case demonstrates how important it is for employers to adopt an equal opportunites policy that complies with legislative requirements and promotes best practice.  Employers must actively demonstrate that they are committed to a programme of action to make the policy effective and to bring it to the attention of all workers.