In 2020, two sales managers working for the used car business Stellantis and You, Anthony Oguntokun and Fathia Omar, raised separate formal grievances that manager Matthew Worsley had used racial slurs such as “black bastard” and “Somali pirate” against them.
During an investigation into the grievance complaints, sales manager Tim Pickering asserted that Worsley was not racially motivated in his comments but rather that the comments were “banter”. The tribunal ruled that both employees had been subjected to racial harassment.
Matt Jenkin, employment partner at Herrington Carmichael LLP, told HR magazine that the tribunal made it clear there was no place for racial slurs in the workplace.
He said: “The decision of the tribunal makes it very clear that there is no place for racial slurs in the workplace. Trying to pass off offensive comments as “banter” is doomed to failure, and likely to be successfully challenged by an employment tribunal.”
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Oguntokun and Omar started working at the Staples Corner branch of Stellantis in January and March 2019 respectively. In April 2020, both were furloughed due to the Covid-19 pandemic.
Oguntokun was not brought back to the business after being furloughed, and was made redundant in July 2020. Omar returned from furlough in June 2020 but became sick on 27 July, which lasted until the end of her employment in February 2021.
At his offboarding meeting, Oguntokun was informed that Worsley had been responsible for deciding his redundancy.
Shortly after being made redundant, he raised the grievance of discrimination against Worsley.
He claimed Worsley had racially harassed him by using the phrase “black bastard” to refer to him, and bullying him by calling his shoes “slippers”. Oguntokun also alleged that Worsley had used the phrase “your lot” when asking him to serve black customers.
He cited an incident where the company was due to enrol him in a training course that all sales advisers were expected to take, but did not, and claimed that this was due to his race.
Oguntokun also claimed that Worsley had forced him to accept the job as sales advisor, despite him rejecting the job offer due to the impact that his previous experience in sales had on his mental health.
As part of the investigation into Oguntokun’s claims, Pickering interviewed Omar.
She claimed that there was a culture of racism at the company but that it had not been reported by her or colleagues as they felt that “nobody would listen”.
Shortly after being interviewed, Omar raised her own grievance complaint against Worsley for bullying, sexual innuendos, racism and discrimination. She said he had referred to her as “Somali pirate” and sprayed air freshener on her while commenting on a “Somali smell”.
She also cited that he had referred to other employees of colour with the phrase “something out of a jungle”.
Pickering responded to Oguntokun’s grievance that he did not believe Worsley’s claims were discriminatory or racially motivated.
“Although it is my reasonable belief that the comment was not intended to be racially offensive, I acknowledge that it is how the individual interpreted the wording and that this is not acceptable,” Pickering wrote.
On 14 August, representatives of Sellantis and You invited Worsley to a disciplinary hearing. He was later dismissed.
The tribunal ruled that Worsley had subjected Oguntokun and Omar to racial harassment that created a hostile environment for them, and had the effect of violating their dignity.
It found that, by using the word “banter” in his grievance outcome, Pickering's words had the effect of violating Oguntokun’s dignity and was therefore unwanted conduct relating to race.
It also ruled that Omar had been unfairly dismissed. In February 2021, when she was due to return to work after her period of sick leave, a company representative told her that she was required to provide 14 days of temperature readings, due to health and safety reasons, during the Covid-19 pandemic, which she provided.
However the company rejected her readings as false, and told her that she would need to take 14 days of unpaid leave. The tribunal ruled that there was no reason to decide that Omar wouldn’t be paid for the enforced period of absence, and that this decision was likely to have destroyed or seriously damaged the “relationship of confidence and trust between employer and employee”.
It ruled that Omar resigned in response to this breach of contract, and was therefore unfairly dismissed.
A remedy hearing has been scheduled for September 2024.
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Employers have a duty to thoroughly investigate allegations of racial harassment, Kash Dosanjh, senior associate at Wright Hassall, explained.
Speaking to HR magazine, he said: “An employer should not take any allegations of racial harassment lightly. It should ensure a thorough investigation is carried out in accordance with its disciplinary procedure. If proven, the allegations could amount to gross misconduct and will also ensure a precedent is set within the workplace that such conduct is unacceptable.”
Sandra Kerr, race director at Business in the Community, told HR magazine that employers should provide anti-racism training to prevent discriminatory behaviour.
She said: “Employers should have a zero-tolerance policy regarding racial discrimination in the workplace and provide training on anti-racism and advice on what employees should do if they experience or witness discriminatory behaviour at work, so that all employees are comfortable with recognising and calling out inappropriate behaviour.
“These actions will create a workplace environment where all employees, regardless of background, feel respected."