It is important that employers actively ensure that their staff do not discriminate against others because the employer will usually be held liable for the actions of the discriminator, and it is very difficult to establish a valid defence.
The point was made by the case of an administrative assistant who took action after a colleague denigrated her Chinese heritage.
After the Claimant mentioned her grandmother’s Chinese descent in the office, her colleague responded with the words: ‘Does she own a chip shop? All Chinese own chip shops.’
The Claimant was embarrassed, upset and offended by the remark. She resigned some months later and launched Employment Tribunal (ET) proceedings.
Her employer at the time accepted that the colleague’s derogatory comment was an act of harassment which was related to race. It argued, however, that all reasonable steps had been taken to prevent him from making such remarks and therefore that they had the statutory defence. It asserted that all its staff were required to undergo equality and diversity training, together with refresher courses.
Ruling on the matter, the ET noted that there was no evidence that the colleague in fact underwent such training. His tendency to make inappropriate comments was known to his line manager.
Although she would intervene if she thought he was about to say something offensive, it should have been apparent to her that he had not taken on board any equality and diversity training he had received and did not appreciate the effect of his remarks on others.
The ET was satisfied that the employer’s equality and diversity policies had not been enforced sufficiently robustly in relation to the colleague. It would have been reasonably practicable for the employer to ask him to do the training, or to do it again, and to have told him in terms to stop making inappropriate comments.
The Claimant complained about numerous incidents and pursued claims of constructive unfair dismissal, direct discrimination, harassment, and victimisation. The majority of her claims failed but her claim for harassment in relation to the comments referred to above succeeded, even though she was out of time when she pursued it and she was awarded £8,500 for injury to her feelings. With interest, her total award came to £9,491.
It is very difficult for employers to establish that they’ve taken all reasonable steps to prevent discrimination occurring in the workplace, and therefore to benefit from the statutory defence, so it is important that they provide regular and thorough training, and that they are pro-active in ensuring that such behaviour does not occur and that it is immediately addressed if and when it does.
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