A recent case is a reminder to employers on the steps they should put in place to reduce the risk that they may be held vicariously liable (through their own negligence or omission) for an individual employee’s discriminatory act in the workplace.
In this case, the claimants complained of racial harassment arising out of an alleged comment made by their Operations Team manager in their presence. Whilst the comment was not directed at them and was intended to be humorous, they both found the comment offensive. The first claimant stated that whilst she understood that people could sometimes make a mistake in the way they spoke, had her manager apologised she would have accepted that, but that his subsequent denial of the comment was upsetting to her. Other staff members had witnessed the comment and the tribunal found that, on the balance of probabilities, the manager had indeed made the racist comment. The tribunal accepted that the manager did not intend to cause offence and that the comment was not of a nature he would ordinarily use. It also accepted that it was a one off comment and not part of any pattern of discriminatory behaviour. However, the comment was clearly unwelcome to anyone with sensitivities relating to race and had clearly singled out an employee from a non-white background for special humorous treatment. For the first claimant, the manager’s comment brought back memories of previous racism she had experienced in childhood and she was shocked by the comment. Whilst the comment was not made by the manager with the purpose of creating a hostile or offensive working environment, the tribunal found that it clearly did have that effect upon the claimants and that is was not unreasonable for them to be affected in this way i.e. the comment was not trivial.
However, the tribunal found that the employer (who was also a respondent in the claim) was found to have taken all reasonable steps to prevent this incident, and was therefore not liable for any act of unlawful harassment. In reaching this conclusion, the tribunal noted that the employer provides employees with an employee handbook on the commencement of their employment which they sign to confirm they have received and read it. This handbook covers comprehensively the promotion of equality and diversity in the workplace. In addition, the employer operates a separate policy to deal with allegations of bullying and harassment, including where such behaviour is discriminatory because of a protected characteristic. The tribunal noted that all employees undergo annual training in diversity and inclusion through an online package which is not logged as completed unless they have satisfactorily answered the questions. The tribunal further identified that the employer monitors the completion of this training and chases people up if they appear not to have been through it. The manager had received this training and, due to his managerial position, at a higher level than more junior staff. The tribunal also noted the specialist training provided to managers involved in recruitment, which included the respondent manager, which involves information regarding the possibility of and the need to eliminate unconscious bias in recruitment.
Considering all of the above, the tribunal found the employer was not liable for the act of unlawful racial harassment by their manager, as it had taken all reasonable steps to prevent it from occurring. Having found that the manager was personally liable for the discrimination, it ordered the manager to pay over £2,600 in total to the claimants as compensation for their injury to feelings.
This case highlights the need for employers to have a clear policy and training in place for employees and managers setting out how employers will address and take steps to prevent unlawful discrimination occurring in the workplace. Where an employer can show that they took reasonable steps to prevent discrimination from occurring, it is less likely that an employer will be held liable for acts of discrimination by their employees.
The case also underlines that named individuals in a discrimination claim can still be held personally liable for discrimination even if the claims are not upheld against the employer.