An employment tribunal has awarded £3,000 to a warehouse worker because of graffiti left by a former employee that had not been spotted by his employer.
The word “slave” had been left on a machine at Window Widgets, which manufactures window parts in Gloucester.
Mr Fofana, who is black, succeeded in his harassment-related-to-race claim, but his claim for direct race discrimination failed.
Mr Fofana worked for the company for a few months towards the end of 2023 but resigned in January 2024. In his resignation letter, he wrote: “The hostile behaviour of other members of staff towards me is affecting my mental health and wellbeing, so I must now do what’s best for me. I can no longer work in a place that I feel uncomfortable in…”
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The environment in the warehouse was one in which “banter” prevailed, the tribunal heard. Mr Fofana had been suspended on full pay for a period in late 2023 after telling a female member of staff she looked “sexy” in her leggings.
In the ensuing investigation, evidence of racism was found. One employee, who had told Mr Fofana that people spoke about him behind his back, submitted that one colleague “sings the Mr Boombastic song in front of SF, SF just laughs. RR says things like ‘he wears a rasta hat, why does he wear that hat if he’s not from Jamaica, he’s from Africa.’ JD said he ‘can’t stand it when he’s eating, people from that country, they eat like that’ or something like that. I just walked away.” He added: “RR was talking about black people in general. I told him he was being racist.”
Despite her bringing the complaint, the female member of staff who was the subject of Mr Fofana’s comment, Ms S, told investigators that the culture at the firm was “good”. She added: “Sometimes there can be sexy comments, but it’s not aimed at anyone specifically.”
RR, the member of staff who was described as being racist towards Mr Fofana, was given a final written warning after a disciplinary process with the management accepting he had not sung his songs with offensive intent. Mr Fofana had also received a final written warning which was to expire on 14 December 2023.
Meanwhile, a previous employee of the firm, Mr B, had complained during 2022 that he was underpaid and overworked. He had taken to writing graffiti around the warehouse.
He feels the evil of slavery viscerally. That is understandable and respectable. We accept his sense of hurt at the graffito is genuine” – employment tribunal judge David Hughes
On 18 December, during a stock-take, Mr Fofana saw the graffito “Slave No.” and an arrow pointing to the number 3 on a Hubtex machine. He told the tribunal that he believed it had been written that morning.
Disgruntled ex-employee
Window Widgets management, who said they had only seen the graffito in April 2024, told the tribunal it was likely to have been there for a considerable time, and had probably written by the disgruntled ex-employee named Mr B. Previous graffiti by Mr B had been removed but the words “Slave No.” had been written in a spot on the machine that was rarely seen.
The tribunal judge, David Hughes, accepted this explanation on the grounds that such a hidden spot would not have been chosen by someone wishing to be racist towards Mr Fofana. Also the word “slave” was ambiguous.
Mr Fofana had been under the impression that the previous two black men employed by the company had been dismissed. This led him to contend that the arrow pointing to the number 3 was a reference to him being “slave number 3”.
The judge did not accept that. “We think it makes the mistake of seeking to find a coherent meaning to an inarticulate graffito,” he said.
However, the judge concluded that even though the colleague “did not intend to write a graffito that related to race”, the term slave does “evoke in contemporary English speakers the enslavement of black people”.
He said that as a “proud black man”, Mr Fofana “feels the evil of slavery viscerally. That is understandable and respectable. We accept his sense of hurt at the graffito is genuine.”
Violation of dignity
He found that “the graffito did have the effect of violating the [Mr Fofana’s] dignity, and creating a hostile, humiliating and offensive environment for him”.
At the tribunal Mr Fofana argued the “Slave” graffiti caused him to resign, despite not mentioning it in his resignation letter, although he admitted he did not report it to anyone, or attempt to remove it himself.
He said he had no confidence bosses would investigate properly and that it wasn’t his job to clean it up.
The judge said: “We understand that it was not for him to remove the graffito – why should he clean up someone else’s vandalism?” but he added that it could not be removed if no one reported it.
He said the company “cannot be criticised for not addressing a problem of which they were unaware”.
However, the judge found that Mr B “was employed by the respondent, at his workplace. It may seem harsh to the respondent, but that means that the respondent wrote the graffito.”
After resigning, Mr Fofana sued the company, claiming £500,000 in compensation, but the panel thought this amount “unrealistic” and awarded £3,000.
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