Warning: this article includes offensive language
A British Asian man who conformed with a sales team culture described as ‘laddish’, ‘crude’ and ‘sinister’ has won his claim for unfair dismissal at the employment tribunal.
Mr Rathod joined the Porsche dealership in Sutton Coldfield, operated by automotive retailer Pendragon Sabre, in 2018 as a sales executive. He was the only non-white member of an all-male sales team and was repeatedly referred to as “Chapati” or “Poppadom”.
Employment Judge Clark described the workplace as “laddish”, crude and immature, where conversation included graphic and sexual references.
He said the culture developed a more sinister level as it was infected by the overt prejudices, opinions and attitudes of some of its members, which included aggressive expressions of misogyny, hostility towards homosexuality, and racism. The phrase “lick my dick” was common parlance on the sales floor.
Rathod did what he could to get on with his colleagues. The judge accepted his description of being an outsider and having to conform to the existing team culture, manifesting in him being subject to some extreme examples of bullying and harassment, which targeted his ethnicity.
Mirroring behaviour
“Nothing in these findings should suggest that Mr Rathod was silently suffering. Conforming meant he not only had to accept his treatment, but to participate in like terms. Put simply, it appears to reflect the classic situation where the bullied finds himself mirroring the behaviour of the bullies,” said the judge.
On one occasion a cup-cake was held over the claimant’s head while he was on the telephone only for it to be smashed into his head as the call ended. On another, a video of him eating Asian flatbread with his fingers was shared alongside comments about how disgusting it was.
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On a day off, accompanied by his young son, Rathod brought McDonald’s for the sales staff who were working. One of the team threw a banana on the floor at his son saying “I want to see how he reacts,” and laughed intensely.
Customers of apparent Asian origin were referred to as “Rajputs” and vehicles arriving with more than one Asian customer were referred to as buses.
When the first national coronavirus lockdown began on 23 March 2020, Rathod set up a WhatsApp group named Porsche Sutton Coldfield for the sales team, including two managers, who had been furloughed. This group and numerous one-to-one exchanges allowed the extreme laddish behaviour to continue.
Rathod returned to work after three months of furlough and spoke with one of the managers about his experience on the team. He said he was sick of the banter, particularly from a colleague referred to as “O”, and that it was making him feel uncomfortable. The manager’s response was dismissive, which may, the judge said, have reflected his perception was that Rathod “gave as good as he got”.
Rathod went off sick with stress, anxiety and depression from September. He attributed his absence to the situation with his colleagues which prompted him to raise a grievance alleging that various colleagues had racially harassed him at work, including specific allegations against O.
Partially upheld
The judge found that the grievance, investigated by Ms Nix, was taken seriously and was “partially upheld”, finding in favour of a number of the Rathod’s allegations, including the particularly serious ones.
O found he was facing serious disciplinary allegations and promptly resigned. Rathod nevertheless appealed the grievance outcome as he had been led to believe that an independent investigator would be appointed and the entire culture of the sales team examined.
During the initial investigation O had defended his conduct on the basis that he and Rathod were friends, that they had a good working relationship, and that Rathod behaved in the same way. O submitted various screenshots from his phone to demonstrate.
Rathod had insisted that he had asked O for the comments to stop but, in the formal grievance outcome, Nix said: “After investigating this point, and after O stated you actually engaged in this sort of conversation yourself, I am unable to agree with your point. Furthermore I am [in] receipt of some messages between yourself and O to confirm his side of the events. Given the gravity of the messages I have since been privy to, I have no alternative other than to also investigate these points with you.”
‘Okay until it’s not okay’
In December, Rathod was invited to a disciplinary meeting. At that hearing, Rathod accepted that he had sent the messages, and that they could be deemed offensive. He described all the crude phrases and comments he had made as not being the language he would ordinarily use and he had not “brought it to the company”. He had engaged in this type of behaviour “to participate in being accepted” and “because I wanted to keep my job, to be part of that group. I had no choice”.
Mr Mason, who conducted the disciplinary hearing, concluded: “Banter is okay until it’s not okay. Referring back to our dignity at work policy you have contravened several points in here, factually, when it comes to harassment of a sexual and racial nature. As a company we have zero tolerance towards it. My view and my conclusion is I have no alternative [but] to dismiss you.”
Rathod appealed but that appeal was dismissed.
In his judgment, Clark said: “There was clearly a glaring issue in need of addressing in view of the evidence that had emerged from Mr Rathod’s original grievance and later disciplinary. If the mantra of zero-tolerance is to be accepted, one might feel entitled to expect there to be evidence of that investigation and further disciplinary action… The employer had a solid basis for at least suspecting, if not evidence to believe, that others had conducted themselves in the same way as O and Mr Rathod … It causes me to find that the respondent’s assertion of a ‘zero tolerance’ to this type of conduct is simply not in fact the case.”
Rathod’s claim of unfair dismissal and breach of contract succeeded, the judgment saying the messages were a product of the culture he came into and which had been allowed to normalise without censure by the employer’s lower management.
The judge said: “To call it a laddish culture is to give it a gentile label. It was crude and likely to cause offence. Mr Rathod’s messages occupy varying positions on the spectrum of offensiveness. Some are not offensive at all. They were put before the employer in O’s defence of him being alleged to have caused offence. Some are potentially offensive but arise directly from the workplace norm. I can see nothing about the claimant using the phrase ‘lick my dick’ which could justify summary dismissal where, in this case, it is condoned in the workplace.”
A spokesperson for Pendragon UK commented: “Since the appointment of chief executive officer Bill Berman in March 2020 our leadership team has introduced extensive training to create a more inclusive and accepting culture. Additionally, they have also updated our discrimination and inclusion policy. We strive to be a company where all people are welcome and should feel comfortable working, shopping and raising their concerns if they feel that the expectation we’ve created doesn’t live up to that standard. We have more than 5,500 colleagues in the UK and each and every single one of them should feel relaxed and happy coming to work. Anything short of this is simply not acceptable.
“We were appalled by Mr Rathod’s allegations in mid-2020 and immediately set about investigating when we became aware of the situation. The examination resulted in the dismissal and/or resignation of those involved and we continue to reinforce our policies and the ongoing training to help our team.”
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Judge Clark added that remedy would be determined at a later hearing if not agreed by the parties.
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