An employment tribunal has delivered its verdict in the case of two asylum seeker escorts who lost their jobs over derogatory and racist messages shared on a workplace WhatsApp group.
David Maynard’s claim of unfair dismissal was upheld by employment judge Tom Perry, but John Lehan’s unfair dismissal claim failed.
The pair were fired by the Home Office contractor Mitie over comments made in a WhatsApp group called Escorts Meet and Greet with other staff. The men’s jobs involved accompanying unsuccessful asylum applicants back to their country of origin or a safe third country. Both claimants transferred to Mitie under TUPE in May 2018.
There were 80 Mitie escorts in the WhatsApp chat, and when news of the messages was made public in February 2022 by a whistleblower, the chief executive of Mitie, Phil Bentley, condemned racist behaviour and promised action.
Employment tribunal cases
Seasonal farm worker brings ‘first case of its kind’
Teacher who fell asleep in class was unfairly dismissed
Sushi comment was not racist finds tribunal
Will Labour’s workers’ rights proposals lead to more tribunal cases?
Caroline Morrissey, senior people transformation and change partner at Mitie, sacked both escorts in April 2022.
Lehan was given an informal warning in 2020 after forwarding a picture of a restaurant that displayed a closed sign which read “closed due to slanty-eyed c—-”. Lehan also made a derogatory comment about asylum seekers on hunger strike.
In October 2021, Maynard, Lehan and a third colleague were talking about a charter flight in which an asylum seeker self-harmed.
Maynard said: “Yes, I remember it well… I got accused of breaking a wrist on that job too.”
Lehan replied with laughing face emojis and wrote: “That’s right.” Maynard replied: “Again vicious rumour totally unsubstantiated.”
The third colleague wrote, “They can only stay if they swim all the way” and Mr Maynard replied one minute later, “What you mean from Syria?”
In November 2021 Shehraz Khan was appointed to investigate the October comments.
He concluded in February 2022 that the “remarks are very close to the line and I feel have a racist undertone however this is difficult to evidence. The positive news is that following my conversation with the union the group has been shut down, hopefully avoiding any further incidents.” He said an informal warning would be sufficient, but following a discussion with Duncan Partridge, Mitie’s head of operations, changed his mind and decided that Lehan and Maynard had cases to answer.
Khan explained to the tribunal that he personally had felt the matter could justify a disciplinary but had been given previous cautious advice from HR.
Meanwhile, a whistleblower within the company had threatened to go to the press with screenshots of some of the messages and on 19 February 2022 the Mirror newspaper ran a story on the comments, without naming Maynard and Lehan.
At the tribunal, the judge praised Mitie for taking a “hard line” over the allegations and noted that the work carried out by the claimants was very much in the public eye and the consequences of their inappropriate communications were more serious for Mitie than they would be at other organisations. “To an extent, this justified [Mitie] taking a hard line over such matters,” he said.
However, Maynard’s sacking had been unfair, he said, because Morrissey had wrongly interpreted that Maynard had been joking about Syrian refugees.
Judge Perry said: “Ms Morrissey was conflating Mr Maynard’s comment with the statement of the person he was corresponding with because that was what the press had done when it reported that Mr Maynard’s comment was a ‘joke about Syrian refugees swimming to the UK’.”
His judgment added: “To conclude there was anything that was racist, offensive or derogatory in what Mr Maynard said was not a response open to a reasonable employer.”
Lehan lost his unfair dismissal and wrongful dismissal claims. The judge said he forwarded an “offensive image related to race” and said his comments about hunger strikers were “derogatory, offensive and insensitive”.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Latest HR job opportunities on Personnel Today
Browse more human resources jobs
