Employer was not found liable because it had taken all reasonable steps to prevent discriminatory act
The Equality Act 2010 (the 'Act') protects employees from discriminatory acts at work. The Act specifically provides that a discriminatory act done by a person (A) in the course of A's employment must be treated as also done by the employer, even if the employer did not know or approve of it. However, the employer can raise a defence if it can show that it took all reasonable steps to prevent A from doing the discriminatory act.
In practice, a claimant bringing discrimination claims may therefore bring them against both the employer and the individual employee accused of discrimination. If the claim is proven and the employer cannot rely on the defence outlined above, tribunals will usually order the employer to pay damages because they are the most able to pay the claimant.
Miss Kaur and Miss Rehman both worked for Capita. They are both of Asian ethnicity and worked in the operations team. Mr Woodhouse was their manager.
On 16 January 2019 Mr Woodhouse walked past the claimants' bank of desks where a white colleague was sitting in a seat usually occupied by a black member of staff. Mr Woodhouse asked the white colleague whether the absent black colleague had 'been dipped and had his head shaved?'
Miss Kaur and Miss Rehman and their colleagues talked about their shock at what had been said.
A few days later Miss Kaur submitted a written grievance of bullying and harassment against Mr Woodhouse in which, amongst other things, she raised the incident of 16 January. As part of the investigation Miss Rehman was interviewed, echoing Miss Kaur's evidence and saying that she too found Mr Woodhouse's comment offensive. Mr Woodhouse denied making the comment, but another witness confirmed that he had made it.
Capita did not uphold the allegations of bullying and harassment, but found that on the balance of probabilities Mr Woodhouse had made the comment as alleged by Miss Kaur. Both Miss Kaur and Miss Rehman were moved to different shifts and Mr Woodhouse was suspended pending a disciplinary investigation. The disciplinary process was never started because Mr Woodhouse remained off work sick.
Miss Kaur and Miss Rehman brought claims of racial harassment against Capita and Mr Woodhouse.
The tribunal found the claimants' evidence clear and convincing and found that the alleged incident on 16 January did happen. In the tribunal's view the comment was out of character for Mr Woodhouse but it clearly amounted to unwanted conduct related to race and, although the tribunal accepted it was not Mr Woodhouse's intention to create a hostile environment, it was clear that it had.
The tribunal found that Capita had comprehensive policies in place, communicated them to and trained all employees on them and subsequently updated that training on an annual basis. Capita had therefore taken all reasonable steps to prevent the incident and was not liable for Mr Woodhouse's act of racial harassment.
Mr Woodhouse was ordered to pay each claimant £1,300 in compensation for injury to feelings.
This case is a good reminder to employers that having good policies in place and taking the effort to effectively communicate and train employees on a regular basis about issues such as workplace bullying and harassment are very useful when facing discrimination claims.
However, this should not be seen as a cause for employers to relax if they have policies and regular training in place. In this case Mr Woodhouse appears to have made an 'out of character' and one-off comment relating to colleagues' skin colours. Had there been evidence of multiple discriminatory acts by Mr Woodhouse and/ or other staff, Capita would be expected to show that they dealt with such issues as they arose, otherwise they would likely fall short of demonstrating that all reasonable steps had been taken to prevent the discriminatory act that occurred on 16 January.
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