Race discrimination is amongst the most sensitive issues that any employer needs to address, and all the more so since the tragic death of George Floyd at the hands of a US police officer and the growth of the Black Lives Matter (BLM) movement. An Employment Tribunal (ET) made that point in ruling that a supermarket worker was unfairly dismissed for making a comment concerning a black children’s toy.
After picking up the soft toy, which appeared to represent a black rabbit, the white British woman made a comment to a co-worker that included a reference to BLM. There was continuing dispute as to the precise words she used. However, she was adamant that she was not a racist, that she had not meant to offend anyone and that she had made no criticism of the BLM movement, which she supported.
Another employee, who was black, overheard what she said and took exception. After she lodged a formal complaint, the worker was the subject of an investigation and disciplinary proceedings. She was suspended and ultimately dismissed for gross misconduct. She lodged ET proceedings after her internal appeal against that outcome failed.
In upholding her complaint, the ET found that her dismissal was both procedurally and substantively unfair. The inexperienced manager who initially investigated the matter omitted to apply the supermarket chain’s fair treatment policy or to address her mind to the correct procedure. The ET noted that her lapses were not entirely her fault and ultimate responsibility for them lay in a lack of adequate training.
The shortcomings in the investigation were not corrected by the disciplinary process, which was fatally flawed from the beginning. Amongst other things, the worker was not told in advance precisely what words she was alleged to have used or why the comment attributed to her breached the chain’s diversity and equality policy.
The decision to dismiss her was based on the degree of offence taken by the complainant to words that she had possibly misheard. There was no finding that the worker’s comment was made anything other than innocently and a false assumption was made that she had received diversity training. She had in fact received no such training in the 16 years prior to the incident.
Given her anguish that she might be considered a racist after inadvertently causing offence, a finding that she had shown minimal remorse was unjustified. There was no evidence that weight was given to her 28 years of unblemished service to the chain and its predecessor. That and other mitigation should have led to a less serious disciplinary sanction being considered.
Overall, the clear impression given by the disciplinary process was one of a lack of impartiality and a lack of understanding of the chain’s policies and the correct application of them. The fact that sensitivities were raised in the wake of George Floyd’s death was all the more reason for great care to be taken to follow procedures thoroughly, objectively and fairly so that justice could be done.
Given the size and resources of the chain, the ET noted that the fact that so many procedural errors were made was unacceptable. Not only had the worker been treated unfairly, but the disciplinary process was a disservice to the complainant and to the chain’s aim to be an inclusive employer. In the absence of agreement, the amount of the worker’s compensation would be assessed at a further hearing.