The Employment Appeal Tribunal (EAT) has overturned an earlier decision after the original chairman told a claimant she looked “as white as the English”, implying she had no grounds for a claim of race discrimination.
Anita Ho, who is of Vietnamese origin, had stated that she was treated less-favourably than others on grounds of her race, not on grounds of colour.
But tribunal chairman S M Duncan had gone on to say: “your skin looks whiter than mine”, pointing to his hand to stress the point.
The tribunal dismissed Ho’s original claim of race discrimination against cleaning company Crystal Services, for whom she had worked as an assistant payroll manager.
She had complained of discriminatory treatment, bullying and verbal abuse from a colleague. Although she complained to her boss, no action was taken.
The main issues in Ho’s appeal were whether she had received a fair hearing at the original tribunal and whether the board, and in particular, the chairman, had given the appearance of bias against her during the hearing.
Ho said of Duncan: “He made me feel humiliated and almost mocked for bringing my complaint. I have pale skin and speak with a noticeable non-native English accent.
“I do not think his comments were appropriate for a chairman in an Employment Tribunal. It felt like he was saying that a Vietnamese person shouldn’t bring a claim for race discrimination.”
The EAT in Stratford, East London, accepted Ho’s account as correct, preferring it to the chairman’s.
Ho’s solicitor, Mohini Bharania, employment lawyer at Russell Jones & Walker law firm, said: “We represent many employees in race cases and we have never seen anything like this before.
“It is crucial that extra barriers are not placed in front of victims of discrimination seeking justice, especially by the very people that are due to hear their case fairly and impartially.”
Ho’s case has now been remitted for a rehearing before a fresh tribunal to be appointed by the regional chairman.
The EAT in its judgment said that: “We are here not concerned with actual bias but the perception of bias, according to the standards of the modern fair-minded observer. That perception extends to the perception of unconscious bias.
“This is not a matter of what is sometimes pejoratively called ‘political correctness’. It is simply a recognition of the need for fair treatment of all our litigants, paying proper regard to their diverse backgrounds.”