Do the right thing

Racial discrimination and victimisation is an emotive subject that requires sensitive
handling.  Drawing on recent real-life
cases, Pauline Matthews looks at some typical situations an employer may face
when dealing with such allegations

Victimisation

Maria, who is from an ethnic minority, has complained to her manager that
she is being paid less than other HR assistants in the same department. She
argues that as she is older than one of the other assistants, she should be
paid more. Her manager tells her the reason for the discrepancy is simply an
historical anomaly. Maria recently applied for a promotion but failed to be
short-listed. She believes that this is due to victimisation because she has
raised a complaint of race discrimination.

PM comments:  To claim
victimisation, a complainant has to show that they did a "protected
act", that is made an allegation of a breach of the Race Relations Act
1976, brought proceedings, or otherwise did anything under or by reference to
the RRA. Therefore, the fact that Maria has made a complaint, but has not yet
gone to the tribunal does fall within the definition of a protected act for the
purposes of a victimisation complaint. She would have to show a causal
connection between the protected act and the less favourable treatment she has
complained of, in this case that she has failed to be short-listed for the
promoted post. This is essentially a question of fact and would involve the
applicant showing, for example, that the other individuals who were short-listed
were less well qualified than her. The respondent may argue that she had not
done a protected act if she has failed to describe her initial complaint in
terms sufficient to allege a breach of the RRA 1976.

Defence

After making her race discrimination complaint, Maria has a period off work
due to stress. The council refuses to pay her sick pay as it says she had not
submitted any sick notes. She is secretly investigated for allegedly being seen
dancing at a nightclub whilst off sick, but the investigation is inconclusive
and no action is taken. When she returns to work she issues tribunal
proceedings for race discrimination in respect of her original complaint. She
subsequently asks her line manager for time off to see her lawyer about her
claim. Her line manager refuses. She then learns of the "secret"
investigation. She claims that these are all acts of victimisation. The council
argues that the decision to refuse the sick pay was made in line with current
council policy and was made by a member of the personnel department who knew
nothing about Maria’s race discrimination complaint. Is this a good defence?

PM comments:  In the case of
LB of Tower Hamlets v Ledeatte, 2000 ALL ER (D) 872, Mrs Ledeatte complained
that she had been told she could not carry over annual leave, had her
entitlement to sick pay withdrawn for not sending a sick note and that her post
was deleted whilst on maternity leave. The tribunal found that all three
decisions were made due to incompetence on the part of the council’s management
rather than victimisation and that it was significant that the individuals
making the decisions had no knowledge of Mrs Ledeatte’s race discrimination
complaint. The Court of Appeal refused to accept Mrs Ledeatte’s argument that
there could be any theory of imputed or collective knowledge, unless there was
some evidence that a comment had been made such as "X" is a trouble
maker and that the person this comment had been made to had acted upon it in a
way detrimental to the individual.

Regarding the secret investigation: Maria does not know of this and only
finds out after the decision has been made to take no action. In a recent case,
Garry v LB of Ealing, 2000 ALL ER (D) 1316, the EAT decided there was no
detriment where the complainant was unaware that a special investigation into
her conduct was continuing and there was no identifiable disadvantage suffered
in the workplace.

However, in relation to the refusal for time off to see a solicitor it is
more likely victimisation will be found as Maria’s line manager does have
knowledge of her internal complaint and her tribunal proceedings. In TNT
Express World-wide v Brown, 2000 ALL ER (D) 466, a similar situation arose. The
court said that the treatment of Mr Brown should be compared to that of anyone
requesting leave of absence. Such a request would normally have been granted.

References

Maria is desperate for extra income and decides to apply for an evening job
as a barmaid. She asks her line manager to provide a reference, which he
refuses saying it wouldn’t be appropriate in view of the tribunal proceedings.
Maria decides to leave her employment claiming in addition, constructive
dismissal and victimisation. She applies for another job after she has left and
again puts her line manager down as a reference, which he again refuses for the
same reasons.

PM comments:  The manager’s
refusal to provide a reference for the bar job can be clearly linked to Maria’s
complaint of race discrimination and it is likely victimisation would be found.
In Khan v The Chief Constable of West Yorkshire, 2000 IRLR 324 CA, Mr Khan made
a race discrimination complaint when he failed to obtain a promotion. When he
subsequently applied for a similar post with Norfolk police his chief constable
refused him a reference because of the tribunal proceedings.

The employment tribunal found that this was victimisation, although his
complaint of discrimination in respect of the promotion failed. He was awarded
£1,500 compensation for injury to feelings. Anyone requesting a reference would
normally be provided with one.

Once Maria has left, the situation changes. Under sex discrimination law
following Coote v Granada Hospitality, 1999, IRLR 452, EAT, the refusal to give
a reference after the end of employment is actionable under the Sex
Discrimination Act. However this decision was reached under European Sex
Equality law.

In De Souza v Lambeth Borough Council, 2000, EAT 627/00, the EAT confirmed
that it was bound to follow The Post Office v Adekeye no 2, 1997, 10R 110, and
that it was not possible for a complaint of race related victimisation to be
made after the end of employment, so in this case Maria at present will not be
able to bring a claim.

Compensation

Maria attends the solicitor’s appointment and is dismissed for unauthorised
absence. She proceeds to tribunal with all her claims. The original pay related
race discrimination complaint is dismissed, but the tribunal find that her
dismissal is unfair and an act of victimisation. They also find that the
refusal of a reference whilst still employed was victimisation, as was the
refusal of time off to visit her solicitor. What compensation will a tribunal
award? Does it make any difference that Maria has chosen to retrain as a
solicitor rather than obtaining another post in HR?

PM comments: The case of Tchoula v ICTS, 2000, IRLR 643, EAT, has
provided useful guidance on compensation. Mr Tchoula, a security guard, made
claims of race discrimination to a tribunal and was subsequently dismissed for
sleeping whilst on duty. He was awarded £53,486, including £22,000 for injury
to feelings and £5,000 for aggravated damages. The £22,000 was awarded on the
basis of three separate acts of victimisation and on appeal the court found it
was acceptable to make one global award rather than for each act of
victimisation. The court however, found that the award of £22,000 was
excessive, taking the view that there were two categories of possible awards, a
higher and a lower one, with this case falling into a lower category because it
did not involve a persistent campaign of victimisation against the complainant
by the employer (compare this to Chan v London Borough of Hackney, 1997, ICR
1014, where an applicant was awarded £25,000 for injury to feelings in
circumstances where he was subjected to months of sustained and continued
pressure before his dismissal). The award was reduced to £10,000, £7,500 for
injury to feelings and £2,500 for aggravated damages. The court also found that
Mr Tchoula had not failed to mitigate his loss by retraining as an IT
consultant rather than returning to security work, but accepted his evidence
that he would no longer be able to work in security because he no longer had a
clean record.

In Maria’s case the employers have not sought to find a reason for
dismissing her, although the tribunal may well find it significant that she was
dismissed as a result of the employer’s own act of victimisation in refusing
her time off to attend a solicitor’s appointment. If she can show that it is
difficult for her to get a job in human resources as a result of the dismissal
and, or, because in this case there has been a refusal of a reference, the
decision to retrain as a solicitor might be accepted and a similar award as in
Tchoula made.

Pauline Matthews is an employment associate specialising in
discrimination law at DLA

Comments are closed.