When a postcard is seen as a case of racial bias

A discrimination ruling against an employer stresses the importance of
communicating equal opportunities polices

A recent case highlights the issues faced by employers in race
discrimination claims. The facts of Mr J Kufeji v Chief Constable of the Kent Constabulary
EAT, 2001 All ER (D) 87 concentrate mainly on an employer’s nightmare – the
employee who sends an inappropriate holiday postcard to his colleagues.

PC Spearpoint sent a card from South Africa depicting bare breasted black
South African women, on which he had written "South Africa’s answer to
Mayfair". Holiday postcards were routinely circulated and this card landed
on the desk of a black officer, PC Kufeji. Kufeji took offence at the card
which he took to mean that all black South African women are prostitutes. He
brought a claim of race discrimination.

Racial harassment

Kent police argued that the receipt of the postcard by Kufeji could not be
viewed as detrimental treatment of him on the grounds of race. But the EAT upheld
a finding of racial harassment. The comment on the card was racially offensive
and Kufeji had taken offence at it, while his white colleagues had found it
amusing.

An employer’s immediate reaction may be that it cannot be liable for holiday
postcards sent by its staff. But Spearpoint knew that Kufeji could be expected
to see the card. Kent police would be liable unless it could show that it took
all reasonable steps to prevent the discrimination.

Spearpoint admitted that he had not seen the police equal opportunities
policy and that, if he had done, he would not have written his comments on the
postcard. There is no chance of an employer successfully running the all
reasonable steps defence in such circumstances.

This was not the only complaint before the tribunal. A senior officer, DS
Simmonds, had criticised Kufeji for the way he had handled a particular matter.
Kufeji defended himself on the basis that he had been following instructions
given to him by a colleague, who had been appointed his mentor, to address
concerns which had arisen over his performance.

Simmonds reacted angrily to this by banging his fist on the table and saying
to Kufeji "now read my lips". Kufeji was so upset by this incident
that he went sick and did not return to work. He alleged that this incident
represented racial discrimination.

Kent police gave evidence that Simmonds did not take kindly to junior
officers questioning his views and had a direct and forceful management style.
He had also been very critical of a white officer and said that he would have
treated any officer in the same way in the circumstances.

The tribunal did not accept this. It inferred that the reason for Simmond’s
reaction was Kufeji’s race. Kent police complained to the EAT that there was no
"evidentiary fact" from which the tribunal could draw an inference
that Simmond’s reaction had been because of Kufeji’s race. But the EAT would
not interfere with the tribunal’s decision.

This suggests that the tribunal decided Simmond’s reaction to Kufeji must
have been on racial grounds simply because Kufeji was black. This has
implications for all employers faced with race discrimination claims. If the
tribunal finds that a claimant of ethnic origin was treated less favour- ably
than a white person, it may infer that this must have been on the grounds of
race, without finding any other evidentiary fact which indicates a racial
motive.

Key points

– Employers must take proper steps to make all staff aware of equal
opportunities policies and train staff as required

– The defence that the employer took all reasonable steps to prevent race or
sex discrimination may be the only effective defence against a claim

– The intention behind a discriminatory act is irrelevant to the question of
liability

– The tribunal is usually the employer’s only chance to defend a claim – the
EAT will rarely interfere with inferences drawn by it

Jill Kelly is a partner at law firm Thomson, Snell & Passmore

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