Telling a Polish worker to "go back to Poland" was direct race discrimination

The Employment Tribunal has found an employer vicariously liable for direct discrimination after a co-worker told a Polish colleague that he and his family should go back to Poland.  The comment was made in October 2016, shortly after Britain voted to leave the European Union, and at a time when the media reported a sharp increase in incidents of racist behaviour towards Polish nationals (Nazarczyk v (1) TJ Morris Ltd; (2) Cowley).

Background law

Employers can be held liable for breaches of the Equality Act 2010 (Act) on its own behalf, vicariously for the acts of its employees and as principal for the acts of its agents. An employer will be vicariously liable provided the offending act is done "in the course of employment", such as inside the workplace, during working hours or when employees were wearing uniform, even where the relevant act was done without the employer's knowledge.

Under s13 of the Act, when A treats another B less favourably than A would treat others, because of a protected characteristic such as race, direct discrimination occurs. In such claims, the burden of proof initially lies on the claimant, but if there are facts from which a court could decide in the absence of any other explanation that the respondent has contravened this provision, the court must hold that direct discrimination has occurred.

Facts

The Claimant was a Polish employee of the first respondent. He raised various allegations that a colleague, C, had discriminated against him on the grounds of race over a 6-year period. The Claimant alleged that C:

• had ridiculed the death of the Polish President;
• treated British workers more favourably then Polish workers; and
• refused the Claimant's annual leave requests unless he was given a bottle of vodka.

The Claimant was concerned about his daughter (who also worked for the first respondent) walking home in the dark after 11pm through an area he deemed unsafe. In October 2016, some 4 months after the Brexit vote, the Claimant asked C if he could work on the same shift as his daughter. C refused and a heated discussion ensued during which C was alleged to have said: "If you do not like it, pack yourself and your family up and go back to Poland."

The Claimant brought a race discrimination against his employer and C.

Employment Tribunal decision

The Employment Tribunal dismissed the majority of the allegations on the grounds that they were out of time or there was no specific supporting evidence. However, they upheld a claim of direct race discrimination in respect of the "go back to Poland" comment, despite accepting that it was said "in the heat of the moment". The Tribunal concluded that C would not have made a similar comment to a hypothetical British comparator.

The Tribunal went on to find that the employer was vicariously liable for the discrimination and recommended that it put in place diversity training. The Tribunal also noted that, following an internal grievance, the employer should have required C to apologise to the Claimant (rather than offering an apology from a member of management).

Comment

This decision highlights the risk that a single inappropriate comment made in the course of a heated discussion can still amount to direct discrimination. In the wake of the Brexit vote, it would be fair to say that this risk was heightened. Indeed, in July 2016, the Home Office reported a 41% increase in racially aggravated crimes in England and Wales compared with the previous year. In August 2016, the TUC published a report entitled "Challenging racism after the EU referendum" which made specific recommendations that employers adopt a strategy of zero tolerance of discrimination and harassment at work, both from co-workers and third parties.

The key take away point for employers is to ensure that all reasonable steps have been taken to prevent such behaviours occurring within the workplace. Such steps will include:

• having appropriate equal opportunities and anti-harassment policies in place which are actively communicated to staff;
• rolling out appropriate training programmes to employees on equal opportunities and harassment. This training could be adapted depending on the audience – with more detailed face-to-face training for managers and perhaps an e-learning module for other staff;
• dealing with any complaints of discrimination or harassment promptly and effectively; and
• where an allegation is upheld, ensuring that appropriate disciplinary action is taken against the perpetrators

Nazarczyk v (1) TJ Morris Ltd; (2) Cowley