Dealing with an allegation of race discrimination should be relatively straightforward in most cases. The employer should investigate the issue to determine whether there is a disciplinary case to answer. If so, and the allegation is established at a disciplinary hearing, the employer can impose a sanction, which would most likely be summary dismissal in the absence of any strongly mitigating circumstances.
Where it can become more complicated is where the allegation is against someone employed by another entity (Company B), such as a third party service provider, whose employees work alongside those of Company A. In that event, Company A may feel like has little scope to take formal action against Company B’s employee, particularly if doing so could have a negative effect on a commercial relationship.
However, this case highlights the danger of Company A essentially passing the buck to Company B and claiming that its hands are tied.
The facts of the case
Mr Jayeola, who is of Nigerian origin and describes his skin colour as black, was employed by HMRC in Manchester. In June 2016, the building in which he worked lost power, resulting in a loss of lighting. As Mr Jayeola was walking down a corridor without light, an employee of G4S, a security contractor engaged by HMRC, shouted ‘it’s a good thing you’re wearing a white shirt or I wouldn’t have seen you.’
Mr Jayeola complained to G4S, but the G4S employee was back in the Manchester tax office the next day. Mr Jayeola felt that he could not work alongside the G4S employee and so left the office. He did not return to work for HMRC.
At a meeting with a member of management (Mrs Cummings) on 1 July 2016, Mr Jayeola expressed his dissatisfaction with how long it was taking G4S to investigate his complaint. He also referred to health problems, including high blood pressure.
Mr Jayeola had been given a written warning for absence, and at the meeting he asked why this had been issued when the absence was caused by the discriminatory act of the G4S employee. He also stated that there was a racist culture on his floor of the tax office, and referred to other examples of interactions that he felt were indicative of racist attitudes.
Following the meeting, Mr Jayeola emailed Mrs Cummings with more detail on why he considered there to be a racist culture. Mrs Cummings responded to again suggest to Mr Jayeola that he raise a formal grievance, but not did state how his complaint would be investigated or whether any disciplinary action may follow.
Mrs Cummings then organised a two hour session on ‘diversity and inclusion’, making it a priority for managers to attend and cascade the information to their teams. In addition, Mrs Cummings asked her PA to send an email to everyone at the Manchester office, affirming HMRC’s zero tolerance approach to racial discrimination and harassment, and advising that instances of such behaviour could result in dismissal.
On 14 July 2016, Mr Jayeola had a telephone conversation with his line manager, Ms Legg, indicating his concern that nothing was going to be done about his complaint. He also stated that he had been made ill by the incident and could not return to work due to the delay in G4S investigating the most recent episode.
However, Ms Legg told him that the matter was out of HMRC’s hands as G4S was managing the investigation. Ms Legg also stated that if G4S chose not to dismiss the employee in question, it was likely that Mr Jayeola would come into contact with him at some point, and asked Mr Jayeola to consider whether he wished to resign for that reason.
The next day, G4S informed Mrs Cummings that it had interviewed the employee in question and reminded him of his obligations in relation to equality and diversity. Mrs Cummings sought advice on potential options from HR, but was told that Mr Jayeola should raise the issue directly with G4S if he was dissatisfied with the outcome. That feedback was given to Mr Jayeola via Ms Legg.
At a meeting to discuss what HMRC could do to assist Mr Jayeola to return to work, he requested that the G4S employee be dismissed or, as a potential compromise, moved to a different floor of the building. Mrs Cummings investigated that request with HR and the Estates team, but was told that it was a matter for G4S to decide. For its part, G4S stated that it was not progressing the matter any further.
The ET’s decision
HMRC tried to defend itself by referring to its policies on equality, and mentioned that its employees were required to undertake annual training on diversity issues.
However, the Employment Tribunal (ET) found that Mrs Cummings did not look into whether a request to move the G4S employee had actually been made, and indeed no documentary evidence was provided by HMRC on that point.
The ET also found that she did not do all that she could to investigate Mr Jayeola’s complaint, such as question anyone who may have witnessed the incident. Further, Mrs Cummings made no enquiry as to any conclusions that had been drawn by G4S in their own investigation into the matter.
Mrs Cummings accepted in the ET that she could have done more to determine HMRC’s options in relation to the G4S employee, and HMRC was criticised for not removing him from Mr Jayeola’s working environment.
Importantly, the ET found that HMRC would have acted differently had Mr Jayeola been white, namely ensuring that he had no further contact with the G4S employee to allow him to come back to work, and accordingly upheld Mr Jayeola’s claim of race discrimination.
Mr Jayeola was awarded almost £25,000 in compensation, including £15,000 for injury to feelings.
What does this mean?
This case shows that it will be difficult for an employer to defend its actions (or inaction) by claiming that it has no scope to take action against a third party’s employee.
As well as fully investigating Mr Jayeola’s complaint, HMRC could have taken a stronger line with G4S in relation to its investigation and action taken against the offending employee. Had it insisted on the G4S employee being moved to a different floor, Mr Jayeola may have been able to return to work.
However, HMRC failed to even determine its options in that regard, and was unable to provide an adequate reason for doing so.
It is also important to note that HMRC was not saved by having various policies on equality and diversity, nor by its requirement that its employees undertake regular training on that topic. In short, having a policy in place is largely meaningless if the employer does not act in accordance with it, which HMRC failed to do here.
Employers should have suitable diversity policies in place, and it is recommended that the rules and expectations of the company are made clear to employees. We also recommend that employers consider the content of any commercial arrangements with service providers, to ensure that they have the right to request the removal of an unsuitable contractor in similar circumstances. In addition, should an incident occur involving a contractor, the employer should take all necessary steps to investigate the issue and prevent it from recurring.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.