REWARD
Tribunal outcomes
Nicola Mullineux, senior employment specialist for Peninsula, considers some tribunal rulings relating to harassment, unfair dismissal and reasonable adjustments
Calling employee by the incorrect name was harassment The employment tribunal (ET) had to consider in the case of Taneja v Phoenix Whirlpools Ltd whether calling an employee the incorrect name amounted to harassment related to race. When a new director started working for the respondent, he arranged to shadow each of the area sales managers as they visited customers. This was so that the director could get to know them but also to assess their capability and to understand what coaching and support they might need. The director contacted the claimant to make the arrangements for this shadowing to take place. During this phone call the director pronounced the claimant’s name correctly. The day before they were due to meet, the claimant messaged the director to say he would be late picking him up because he’d need to do the school run first. He expected to be able to get there for about 8.45am but on the day he actually arrived between 9.05am and 9.10am. Once the director was in the car, the claimant introduced himself. The director showed he was a little irritated because the claimant’s lateness meant he had been waiting an hour or more. The director was also irritated because the claimant’s first appointment had been cancelled and the others weren’t actually confirmed. During the journey, the director referred to the claimant incorrectly as Vikesh on two separate occasions and the claimant corrected the director both times. When they stopped to get a coffee and the director used the incorrect name another two times, the discussion became heated. The claimant became angry and upset and said that
the director hadn’t listened when he had corrected him previously. It resulted in the claimant refusing to continue the shadowing and requesting the director remove his bags from the car. The director said that the claimant was dismissed. Several telephone calls then took place with the owner of the respondent business who ultimately confirmed that the claimant was dismissed. The claimant brought claims of unfair dismissal, direct discrimination, and harassment related to race. As the claimant didn’t have the required two years’ service to bring an unfair dismissal claim, the ET didn’t have jurisdiction to hear this claim, so it was dismissed. “The action of misnaming the claimant was found to be unwanted behaviour related to race that violated the claimant’s dignity or created an intimidating, hostile, degrading,
with those he considered subordinate, not because of his race. However, the action of misnaming the claimant was found to be unwanted behaviour related to race that violated the claimant’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment. The ET held that it was related to the claimant’s race as the name the director used is one which has a direct connotation with race. The harassment claim, therefore, succeeded. The claimant won the harassment claim and was awarded £8,000 in injury to feelings and £1,329.23 in interest – a total of £9,329.23. EAT finds that dismissing employee for posting “joke” was a fair dismissal The Employment Appeal Tribunal (EAT), in the case of Vaultex UK Ltd v Bialas, had to consider whether the ET had correctly applied the band of reasonable responses test when they found that it was unfair to dismiss an employee for posting a racist “joke”. While at work, the claimant decided to search the internet for a joke, which he then posted on the company intranet. After only a few minutes, the joke was reported for being racist and was swiftly removed. The incident was investigated as a disciplinary matter. The claimant explained that he had found the joke on the “clean section” of a website. He also repeatedly, orally and in writing, apologised for the incident and asked to be retrained as he didn’t understand how the joke was racist. Nevertheless, the disciplinary chair found that the joke was racist and felt bound by
humiliating or offensive environment”
The direct discrimination claim failed because while it did amount to less favourable treatment, the ET held that the director had called the claimant the wrong name because of a lack of care in dealing
| Professional in Payroll, Pensions and Reward | September 2024 | Issue 103 38
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