United Kingdom Employment Appeal Tribunal

Introduction

The issues

“(1) Whether the respondent discriminated against the claimant on racial grounds as alleged in relation to:

(i) Mark McAleese’s comment and reference to gollywog and gollywog jam on 29 January 2009

(ii) Elizabeth Thomas’ comment that the claimant complaint ‘could get nasty’ in February 2009

(iii) Mark McAleese’s comment on the BNP sometime in or around May 2009

(iv) The decision by Mark McAleese to investigate a written complaint against the claimant under the respondent’s disciplinary procedure on 17 June 2009

(2) Whether the respondent victimised the claimant as alleged in relation to the decision to suspend the claimant for taking cakes without permission contrary to the procedure in the catering services staff handbook, money having been left in the office.”

The legislation

“1 Racial discrimination

(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;

2 Discrimination by way of victimisation

2(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act;

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

3A Harassment

(1) A person subjects another to harassment in any circumstances relevant for the purposes of any provision referred to in section 1(1B) where, on grounds of race or ethnic or national origins, he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.”

“68 Period within which proceedings to be brought

(1) An employment tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of –

(a) the period of three months beginning when the act complained of was done;

(6) A court or tribunal may nevertheless consider any such complaint or claim which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(7) For the purposes of this section –

(a) when the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract; and

(b) any act extending over a period shall be treated as done at the end of that period;”

The facts

“15. We have concluded that on the balance of probabilities on 29 January 2009 Mr McAleese used the word ‘gollywog and ‘gollywog jam’ during a discussion in the kitchen with the claimant. It was common ground between them that the claimant had become upset and Mr McAleese had apologised to her. However, we accept his evidence that the context in which he had used the words was the change to the label of Robertson's jam, as he explained in his statement to Mr Barrett. Although his statement to Mr Barrett refers to the ‘doll’ and he denied using the word ‘gollywog’ or ‘gollywog doll’ in his investigatory interview with Ms Beazley on 29 October 2009 and denied using the word ‘gollywog’ at all in his witness statement, Mr Barrett recalled in his investigatory meeting with Ms Beazley on 22 October 2009 that Mr McAleese had said the word ‘gollywog and that what he had said was wrong and he would not do it again. He subsequently attended the diversity course that Mr Barrett proposed as a resolution to the complaint made by the claimant without demur. The claimant was unable to explain how the remarks she alleged had come about but did recall the link of the word ‘gollywog’ to ‘jam’ in her contemporaneous complaint of 3 February. We have concluded that, although he used the words alleged in her presence, he did so when their backs were to each other in the kitchen environment and, due to his manner of speaking, she did not hear or did not understand the context in which he said them, and formed the view that he had directed them at her. He had apologised when he realised how upset she was. We have concluded that for a white manager to use the word ‘gollywog’ and ‘gollywog jam’ in the course of a conversation with a black Afro Caribbean colleague is unwanted conduct. Although Mr McAleese did not do so with the purpose of violating the claimant's dignity or creating an intimidating hostile degrading or offensive environment for her, it had that effect having regard to all the circumstances, including in particular the perception of the claimant. The immediate effect on her was evidently short-lived since she found no reason not to ask Mr McAleese, the perpetrator, if her daughter could work with him that same weekend and told Mr Barrett she was alright. Having then decided to make a complaint, she did not choose to pursue a formal route despite the advice of Ms Thomas and by 18 February 2009 had agreed with the course of action proposed by Mr Barrett and was happy not to take matters further. Thereafter she was able to continue working with Mr McAleese and did not raise the matter again until faced with a disciplinary investigation into her conduct by Mr McAleese.”

“20. We have concluded that the Gollywog comments constituted an isolated act of harassment by Mr McAleese in January 2009.  There is no link between it and the act of victimisation when the claimant was suspended on 28 October 2009.  There was therefore no continuing act for the purposes of section 68(7)(b) of the RRA.  We do not consider it just and equitable to extend time to consider that complaint.  The grievances she raised referred in terms to racism and we heard no evidence that her lengthy absences from work prevented her from presenting her claim in time.  The delay is a lengthy one for which she has given no adequate explanation and she has failed to act promptly.”

“5.14. On Sunday 15 June 2009 the claimant called Mr McAleese on his mobile phone to report that she had been sworn at by a member of staff (Mr Diaz) over the weekend. He was not at work that day and asked her to put it in writing. He did not have in mind at that point the need for a disciplinary investigation because no formal complaint had yet been made

5.15. On 16 June 2009 he returned to work and spoke to the claimant who reiterated what she had said to him in her telephone call. At that point she had not put anything in writing, nor did she say she wanted to make a formal complaint. However, later that day he was informed by Ms Beazley that one of the staff members (Mr Diaz) had made a written complaint about being sworn at by the claimant and asked him to commence an investigation. There was also a witness statement from another member of staff, Alex. He told the claimant about this the same day and on 17 June handed her a letter asking her to attend an investigation meeting on 26 June. He told her that both complaints would be investigated separately. She was concerned about whether this would go on her record and he sought the advice of the respondent's HR team about this on 19 June 2009. 0n 23 June the claimant gave Mr McAleese two statements made by her about the events on 13 and 14 June 2009 in which she set out her complaints about the behaviour of the members of staff (Mr Diaz and Alec). Mr McAleese was not in work on 24 and 25 June and made arrangements to meet with Ms Hunt of the Respondent's HR team on 26 June so that he could get some advice about how to deal with the claimant's complaints. He did not meet with her until 29 June by which time the claimant had sent Ms Hunt a grievance of 23 June 2009 because (as she said in cross examination) she felt it ‘did not look right’. His investigation was suspended pending the outcome of the investigation into her grievance.

5.16. The claimant's grievance was headed ‘Re Grievance in relation to racism endured at work’ and she complained….

5.17. On 2 July 2009 Ms Hunt wrote to her to tell her the grievance would be investigated by Ms Beazley and that, since she had made allegations of racism against Mr McAleese, the disciplinary investigation which had been commenced by him would be postponed until the grievance was investigated.”

“18. The claimant compares herself with the two employees whose complaints against her were immediately investigated while hers was not. Mr McAleese had asked her to put her complaint in writing and she had not done so. In contrast without complaining orally first the other employees did put their complaint in writing which prompted the initiation of an investigation under the instructions of the respondent's HR team. If Mr McAleese can be criticised it is for not being proactive in securing a written complaint from the claimant who was obviously sufficiently upset by the events of the week end to contact him at home but we do not conclude that he took the decision to investigate the complaints of the other employees was less favourable treatment of the claimant on racial grounds on racial grounds. It was a result of timing of receipt of a written complaint and before he had the chance to seek HR support about what to do about her complaint (a matter of a few days after he had commenced the Investigation) the investigation was stopped.”

“5.30 In Mr Barrett’s absence, Mr McAleese spoke to Ms Thomas on 28 October.  She did not see Mr McAleese’s email to Mr Barrett herself.  Ms Thomas decided that Mr McAleese could not be involved as an investigator.  She decided to appoint Mr Hawkins (a Unit Catering Manager) to investigate the concern Mr McAleese had raised because he was a manager of a higher grade than the claimant and not involved with any other matters concerning her.  When Mr Barrett went to see Ms Thomas on his return to discuss Mr McAleese’s email he found that he had already rung her.

5.31 On 28 October Mr Hawkins and Ms Thomas went to Passfield Hall together.  On the way she explained the situation as Mr McAleese had explained it to her.  The claimant was on duty at the counter.  Mr Hawkins had never undertaken an investigation for the respondent before.  Ms Thomas (who had brought someone with her to take over from the claimant on the counter) asked to speak to the claimant concerning an allegation.  They went into the nearby office and Ms Thomas introduced Mr Hawkins.  She then left.  Mr Hawkins suspended the claimant for taking cakes without permission.  The claimant was very upset.

5.32 He wrote to her on 29 October to confirm she had been suspended on full pay and to ask her to attend an investigatory meeting with him on 3 November. He told her the allegation was that she took two cakes from work without the prior permission of her line manager and in doing so did not follow the correct procedure for personal purchases as outlined in the LSE Catering Staff Information Handbook. He also recorded that she said to him that she had asked Mr McAleese for permission to order them, he had given her permission, they had been ordered and she had left the money on the counter for him to collect when he returned to work because he was not in on the day she took them. He said the purpose of the suspension was to enable a full investigation to take place and to allow the investigation to be carried out as smoothly as possible and to minimise the stress she might feel while the investigation is taking place.”

“19. The protected act for the purposes of section 2(1)(d) of the RRA was the claimant's grievance of 23 June 2009. Ms Thomas did not seek any advice from HR although she was aware that the claimant had raised a grievance and that her deputy was questioning both Mr Barrett and Mr McAleese. We did not hear from Mr Hawkins about why he took the decision to suspend the claimant. She and Mr Hawkins went together to Passfield Hall and we find it more likely than not that Mr McAleese had told her about the money on the desk since he had set this out in his email to Mr Barrett. She had already put in place arrangements needed to enable the claimant's duties to be assumed immediately by another chef. There was no need for the investigation to commence immediately before service. The claimant gave Mr Hawkins a version of events which was entirely consistent with that given by Mr McAleese and therefore passed (or ought to have been passed) by Ms Thomas to Mr Hawkins when she explained the position to him so that he could have taken it into account when deciding whether to suspend or not. Although it is not untypical for an employer to suspend an employee suspected of stealing, Ms Thomas agreed that suspension depended on the circumstances of the case and an employee would not be suspended unless the matter was very serious. We conclude that an employee who was known to have taken cakes home and said that money had been left for them whose manager had confirmed that money had indeed been found would not have been suspended as the first step in an investigation. The suspension of the two employees was in relation to allegations of theft not of the rules set out at 5.25 and followed the rejection of their initial explanation. There was no evidence before us as to why Mr Hawkins chose to reject the explanation which was immediately given to him given by the claimant. We consider that the suspension of the claimant immediately prior to service was less favourable treatment even though suspension may be a neutral act and we conclude on the balance of probabilities that the decision to suspend the claimant had been taken by Ms Thomas before and irrespective of any explanation from the claimant and that she took that decision by reason of the protected act.”

The parties’ submissions and our conclusions

1. The gollywog comment

2. Investigating the written complaint

3. The cakes incident

Disposal