Tribunal: Trust and confidence was not destroyed
A law firm has been ordered to pay a former staff member £8,500 in damages after finding that a colleague’s remark on her grandmother’s Chinese heritage amounted to racial harassment.
However, Ms S Sutherland’s claims of constructive unfair dismissal, direct discrimination, victimisation and other claims of harassment against Watkins Solicitors all failed at Bristol Employment Tribunal.
The claimant, who described herself as a black British woman, began working part-time at the Bristol-based firm in July 2018 as an administrative assistant in the conveyancing department, which was headed by Angela Dunlop.
In September 2018, a Mr Bridge, a friend of Ms Dunlop’s, joined the firm as a paralegal.
The tribunal recorded that Mr Bridge was “‘chatty’ in the office and had a tendency to be loud… he also had, from the outset of his employment, a tendency to make inappropriate comments”.
Ms Dunlop would “sometimes intervene when she thought he might say something inappropriate”.
In February 2019, Ms Sutherland mentioned that her grandmother was of Chinese heritage. Mr Bridge responded: “Does she own a chip shop, all Chinese own chip shops?”
Ms Sutherland felt embarrassed and upset, and found the comment offensive. A few weeks later, she told the firm’s HR manager but “begged her not to raise it with anyone else”.
However, the HR manager informally told managing partner Beverley Watkins, who was angry and “disgusted” by the comment. She asked Ms Dunlop to tell Mr Bridge that what he said was unacceptable and, if it happened again, it would be extremely serious.
Ms Dunlop said she did so, but the tribunal did not accept her evidence about the conversation.
“Mr Bridge was a friend of Ms Dunlop. It was more likely, taking into account the reaction of Mr Bridge after the discussion, that he was simply told about the allegation and not to do it again; we did not accept that the seriousness nor the potential disciplinary consequences were impressed upon him.”
Afterwards, Mr Bridge announced to colleagues that someone had tried to get him into trouble, but it backfired and he did not even get a slap on the wrist.
The tribunal said this reaction “would have been upsetting to the claimant and that it would have reemphasised the distress she had suffered” three months earlier.
However, no further incidents were alleged against Mr Bridge before his employment ended in October 2019 and Ms Sutherland had continued to work with and speak to him.
“We did not accept the level of hurt contended for by counsel for the claimant,” Employment Judge Bux said.
The tribunal concluded that this was “an act of harassment by Mr Bridge”. It rejected the firm’s defence that it had taken all reasonable steps to prevent him from doing the act through requiring all staff to undergo equality and diversity training on induction and for refresher courses to take place.
The judge said: “No evidence was adduced as to what the training involved. Although it was asserted in the grounds of response that Mr Bridge had received training, no evidence… was provided that he actually received it and therefore no conclusion was reached that he was.
“It was significant that Mr Bridge had a tendency to make inappropriate comments, this was known by Mrs Dunlop and she would intervene if she thought he was about to say something inappropriate.
“It should have been apparent to Mrs Dunlop that Mr Bridge had not taken on board any equality and diversity training that he had received and not appreciated the effects of the comments he was making.”
The tribunal found the firm did not enforce its equality and diversity policies in a “sufficiently robust” manner in relation to Mr Bridge.
It was “reasonably practicable” for the firm to have asked him to do the training or to do it again and to have told him to stop making inappropriate comments before February 2019.
At the same time, given that Ms Sutherland did not want to raise a formal complaint, the tribunal found it was “more of an error of judgement” by Ms Dunlop, rather than a deliberate act, and was not a fundamental breach of contract
Among a series of other allegations, the tribunal found that Ms Dunlop had twice shouted at Ms Sutherland. While “as a manager more restraint should have been shown”, these were isolated incidents that did not prove discrimination, victimisation or a fundamental breach of contract.
There was also a team email from Ms Dunlop in January 2020 setting out tasks that needed to be done while she was off ill. It highlighted a target alone for Ms Sutherland, “if you are doing this only (which you should be)”.
The tribunal acknowledged that she found this remark upsetting “and although we accept the intention behind it, it could have been better worded and was unreasonable”.
But it was again not of a type which was likely to seriously damage or destroy the claimant’s trust and confidence in the firm.
The tribunal said the incidents involving Ms Dunlop were “at most” unreasonable behaviour and there was a lack of evidence from which it could infer that there was motivation because of or relating to sex and/or race.
The claimant further alleged that the decision to furlough her when Covid hit and not another part-time worker doing similar work to her was discriminatory.
But the tribunal accepted Ms Watkins’ evidence that the colleague was not furloughed because he could work across multiple departments without training, and could help with technical issues. Her decision made “logical sense”.
Taken together, the firm’s conduct was “not so serious that a reasonable person would consider that there had been a fundamental breach of contract”, Judge Bux concluded.
Ms Sutherland resigned in July 2020, claiming constructive dismissal. The tribunal noted that, even if it was wrong on whether there was a fundamental breach, Ms Sutherland had waited more than six months to resign after the Dunlop e-mail.
“This was a significant amount of time and the claimant returned to work after furlough and we were satisfied that her return to work demonstrated that the claimant intended to continue the contract and any breach was affirmed.”
It awarded £8,500 for injury to feelings for Mr Bridge’s comment, which included £500 to reflect his response after being spoken to by Ms Dunlop, plus £1,000 in interest.
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