"Not dark enough to be offended” – Hotel Receptionist wins Tribunal claim

Introduction

A hotel receptionist succeeded in her claims of direct race discrimination, harassment and victimisation against not only her former employer but also an individual duty manager who made racist comments. The criticisms the tribunal levelled at the respondent regarding the culture embedded within its workplace and the inadequate steps it took in a ‘sham’ attempt to address the claimant’s grievances provide a salutary lesson for employers.

The Facts

Ms Sylvester (the claimant) had been employed as a reception supervisor at the Harper Hotel (the respondent) for just under two years when she resigned. Ms Sylvester is of mixed heritage, her mother being white English and father black Caribbean, and has suffered from anxiety and depression for a number of years.

Shortly after she started employment, comments such as ‘I want every f****** foreigner out of the country’ were said by a bar manager, in the claimant’s presence, in reference to other staff. When the claimant raised this with management, it was dismissed and the claimant told ‘she was not dark enough to be offended’.

At a later point in the claimant’s employment, she sought promotion to the role of Reception Manager after the previous post-holder left. The respondent stated they did not intend on re-filling that position and, instead, the claimant was simply tasked with additional responsibilities to cover parts of the role. Several months later, when the claimant had a period of sickness absence, the previous Reception Manager was reinstated in the same role, despite the respondent’s earlier assertions the role no longer existed. The respondent failed to provide a non-discriminatory reason for the difference in treatment and consequently, the Tribunal found the failure to promote the claimant was an act of direct race discrimination.

The claimant brought her claims against her former employer, but also brought specific harassment complaints directly against a duty manager, Mr Holmes, as she was entitled to do under the Equality Act. It was found that Mr Holmes, referring to customers, said ‘the blacks need serving outside’ while the claimant had been on shift. He also referred directly to the claimant as ‘all you lot’ and ‘all you black people’ while discussing drug addicts; and made a comment to the claimant stating ‘well, that’s just a n***** in a woodpile’, causing such distress to the claimant she had to finish her shift early after having experienced a panic attack. All comments had a profound impact on the claimant and were found to be acts of harassment. The tribunal found the fact that Mr Holmes was in a managerial position over the claimant, to be an aggravating feature.

Grievance and Appeal

The respondent was also criticised for a number of procedural failings when dealing with the employee’s grievance, on top of existing culture problems. Where concerns were raised regarding the actions of Mr Holmes, these were either not addressed or swept under the carpet, with excuses made for his behaviour.

The grievance investigation was found by the Tribunal to be ‘wholly inadequate’, as it was rushed, there was no attempt at properly investigating concerns, with some issues simply not addressed at all, and the grievance manager was found to have approached the investigation with a ‘closed mind’. The Tribunal concluded the grievance was a sham and did not serve its purpose to properly address genuine concerns the employee held.

Even at the grievance appeal stage, which was conducted by an external investigator, the handling of the claimant’s concerns continued to be inadequate and somewhat highhanded with no attempt to understand her upset or the effect claimant of her experiences.

The respondent had an equality, inclusion and diversity policy in place alongside a personal harassment policy and procedure, both of which applied to all staff at the hotel. However, simply having such policies in place is not enough and so found the tribunal. None of the staff had received training to accompany the equality, diversity and inclusion policy until after the employee’s resignation at the conclusion of her grievance. The tribunal noted that earlier implementation of training may have meant the actions within the claim may not have happened at all, or at least would have been handled differently.

In addition to the discrimination findings themselves, the tribunal also concluded that the respondent’s actions amounted to individual and cumulative breaches of the duty of mutual trust and confidence. This entitled the claimant to terminate the employment contract, and enabled her to succeed in her claim that she was constructively dismissed by the respondent.

Lessons to be learned

This case is a stark reminder around the need for employers to promote an inclusive culture and how inadequate handling of workplace concerns, particularly those involving discriminatory remarks, can not only invalidate individual experiences but have serious legal consequences for the employer.

The Tribunal was particularly critical of this respondent’s culture of dismissing concerns, making excuses for inappropriate comments and language used and a failure to follow its own policies. The Tribunal commented, “We find that there was a continuing course of conduct which comprised of making offensive comments as to race compounded by the failure of management to take action by way of equality and diversity training and to deal with staff complaints about discrimination.”

Some key takeaway learning points for employers to remember:

• Ensure all employees are properly equipped with equality and diversity training, to ensure they understand the employer’s expectations around treating those with protected characteristics with respect and creating an inclusive and safe culture / working environment. Alongside addressing these “overt” aspects, training should also help address unconscious biases.
• Where concerns are raised, employers should take adequate steps to ensure employees are listened to, allegations are investigated, and appropriate steps are taken to improve inappropriate behaviours where they have been found, including addressing acts amounting to misconduct under relevant disciplinary procedures.
• Robust grievance procedures should be in place and properly followed, with the relevant individuals properly trained and equipped to deal with grievances adequately in accordance with those policies to avoid ‘sham’ grievances such as the one in this case.