Tribunal outcomes

19 August 2024

Nicola Mullineux, senior employment specialist for Peninsula, considers some tribunal rulings relating to harassment, unfair dismissal and reasonable adjustments

Calling employee by the incorrect name was harassment

The employment tribunal (ET) had to consider in the case of Taneja v Phoenix Whirlpools Ltd whether calling an employee the incorrect name amounted to harassment related to race.

When a new director started working for the respondent, he arranged to shadow each of the area sales managers as they visited customers. This was so that the director could get to know them but also to assess their capability and to understand what coaching and support they might need. The director contacted the claimant to make the arrangements for this shadowing to take place. During this phone call the director pronounced the claimant’s name correctly.

The day before they were due to meet, the claimant messaged the director to say he would be late picking him up because he’d need to do the school run first. He expected to be able to get there for about 8.45am but on the day he actually arrived between 9.05am and 9.10am.

Once the director was in the car, the claimant introduced himself. The director showed he was a little irritated because the claimant’s lateness meant he had been waiting an hour or more. The director was also irritated because the claimant’s first appointment had been cancelled and the others weren’t actually confirmed.

During the journey, the director referred to the claimant incorrectly as Vikesh on two separate occasions and the claimant corrected the director both times. When they stopped to get a coffee and the director used the incorrect name another two times, the discussion became heated. The claimant became angry and upset and said that the director hadn’t listened when he had corrected him previously. It resulted in the claimant refusing to continue the shadowing and requesting the director remove his bags from the car. The director said that the claimant was dismissed. Several telephone calls then took place with the owner of the respondent business who ultimately confirmed that the claimant was dismissed.

The claimant brought claims of unfair dismissal, direct discrimination, and harassment related to race.

As the claimant didn’t have the required two years’ service to bring an unfair dismissal claim, the ET didn’t have jurisdiction to hear this claim, so it was dismissed.

The direct discrimination claim failed because while it did amount to less favourable treatment, the ET held that the director had called the claimant the wrong name because of a lack of care in dealing with those he considered subordinate, not because of his race.

However, the action of misnaming the claimant was found to be unwanted behaviour related to race that violated the claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment. The ET held that it was related to the claimant’s race as the name the director used is one which has a direct connotation with race. The harassment claim, therefore, succeeded.

The claimant won the harassment claim and was awarded £8,000 in injury to feelings and £1,329.23 in interest – a total of £9,329.23.

EAT finds that dismissing employee for posting “joke” was a fair dismissal

The Employment Appeal Tribunal (EAT), in the case of Vaultex UK Ltd v Bialas, had to consider whether the ET had correctly applied the band of reasonable responses test when they found that it was unfair

to dismiss an employee for posting a racist “joke”.

While at work, the claimant decided to search the internet for a joke, which he then posted on the company intranet. After only a few minutes, the joke was reported for being racist and was swiftly removed.

The incident was investigated as a disciplinary matter. The claimant explained that he had found the joke on the “clean section” of a website. He also repeatedly, orally and in writing, apologised for the incident and asked to be retrained as he didn’t understand how the joke was racist.

Nevertheless, the disciplinary chair found that the joke was racist and felt bound by the respondent’s zero-tolerance approach to discriminatory language, and that any sanction less than dismissal would go against that. The claimant was therefore dismissed on the basis that he had “run the risk in posting the post without giving it proper thought”. The claimant brought a claim for unfair dismissal.

In reviewing the disciplinary process that was undertaken, the ET found it to be “generally procedurally fair”.

However, the ET held that the dismissal was outside of the band of reasonable responses because:

of the racist nature of the joke and the fact an employee had complained. This had the potential, in the ET’s opinion, to undermine the respondent’s commitment to equality, diversity and inclusion (EDI). However, this didn’t mean that dismissal was the only option
the claimant had offered a full apology and to undertake training so that he could learn more about why the joke was racist and to avoid anything similar happening in the future
the claimant had an unblemished and long service record
the claimant had not given proper thought to his action. In the ET’s opinion, it would have been “sheer stupidity” to reference the EDI campaign and then post a racist joke. This, the ET felt, was indicative of a misunderstanding rather than intentional malice.

The EAT found that the ET had substituted its own decision for that of the respondent, which it is not permitted to do, and as a result it had incorrectly applied the band of reasonable responses test. This was based on its analysis of the ET’s findings, including that the ET held that there were options other than dismissal and so dismissal was unfair, whereas in the EAT’s judgment this didn’t mean that dismissal was necessarily outside the band of reasonable responses.

The EAT also rejected the ET’s judgment that the claimant’s clean disciplinary record and long service should have been considered. Having regard to the findings as to the contents of the post, where it was posted and the nature and content of the respondent’s policies and campaigns, the EAT concluded that “…any tribunal properly applying the law couldn’t have concluded other than that dismissal”. As a result, the EAT overturned the decision and held that it was a fair dismissal.

Reasonable adjustments refusal was not proportionate means of achieving legitimate aim

In the case of Powell v University of Portsmouth, the EAT had to assess whether the respondent’s refusal to put in place requested adjustments was a proportionate means of achieving a legitimate aim.

The claimant was employed as a principal lecturer, and most of his role involved classroom and lecture-style teaching. Due to an undiagnosed cardiac impairment, the claimant began to suffer unpredictable blackouts which affected his ability to fulfil his duties.

The respondent initially permitted the claimant to undertake administrative duties but once the teaching semester began, the respondent required the claimant to continue to undertake a certain amount of teaching and lecture-based duties, which was the dominant requirement of the role. Due to the blackouts, the claimant requested the following adjustments be made to his work:

no large class teaching or lecture, instead the claimant to undertake final year supervision and postgraduate teaching
providing someone to accompany the claimant when teaching
undertaking a risk assessment in relation to the blackouts and another risk assessment in relation to stress.

At the same time, the claimant informed the respondent that his condition had deteriorated and that he didn’t feel safe in front of a class, and there wasn’t yet a diagnosis or treatment plan in place.

The respondent rejected these amendments and a request to allow the claimant to undertake limited research-based teaching duties instead of classroom or lecture-based duties. This was due to concerns that the blackouts continued to pose a danger to the claimant and those around him, and because teaching was a significant part of the claimant’s duties. As a result, the claimant wasn’t permitted to return to work while he couldn’t undertake classroom-based teaching.

The claimant alleged that this was a breach of section 15 of the Equality Act 2010 and a failure to make reasonable adjustments.

In its judgment, the ET focused on a relatively short period of time which fell at the beginning of the academic year, when the claimant’s duties were predominantly classroom and lecture-based teaching.

The respondent argued that it had previously experienced difficulties when covering for the claimant’s sickness absence and needed to ensure it could offer high quality teaching. That, alongside concerns over the claimant’s inability to complete reduced duties agreed as part of a phased return prior to this period, and what the claimant described as debilitating blackouts (the cause of which remained undiagnosed at that time), led to concerns that permitting the claimant to undertake any duties posed a risk to the university, its students and the claimant himself. The respondent accepted that continuing to require the claimant to teach was unfavourable treatment arising from his disability, as this was the reason the claimant was unable to teach in a classroom. However, it argued that this was a proportionate means of achieving a legitimate aim due to the risks of allowing the claimant to teach or lecture being significant.

Taking the evidence into account, the ET held that the adjustments suggested by the claimant weren’t reasonable, and therefore the respondent hadn’t failed to put in place reasonable adjustments. The ET upheld the respondent’s argument that the measures it had imposed were a proportionate and necessary means of achieving its legitimate aim to protect itself, its students and the claimant.

Both claims failed and the claimant appealed these findings. Before the EAT, the claimant argued several points. One was that the ET had erred in its reasoning where it held that the respondent was justified in requiring the claimant to carry out a certain number of teaching hours, because, according to the claimant, this wasn’t proportionate. Instead, the claimant told the EAT that he could have undertaken some duties, just not teaching ones, and that this should have been sufficient for the respondent to permit him to return to work.

The EAT rejected the claimant’s appeal. It held that the ET had properly assessed the claimant’s case, and that the conclusions it had drawn because of this were open to it based on the evidence it had been presented with. Refusing to uphold the claimant’s argument that the ET should have focused on what the claimant could do, rather than what he could not, the EAT found that this had in fact happened, and it was reasonable for the ET to uphold the respondent’s position that the claimant couldn’t conduct any of his duties safely.