Law firm pays ex-employee £8,500 over racial harassment

Court: trust has not been destroyed

A law firm has paid a former staff member £8,500 in damages after it found a colleague’s remark about his grandmother’s Chinese heritage amounted to racial harassment.

However, Ms S Sutherland’s claims for constructive unfair dismissal, direct discrimination, victimization and other harassment claims against Watkins Solicitors were all unsuccessful in Bristol Employment Tribunal.

The claimant, who describes herself as a black British woman, started working part-time at the Bristol-based company in July 2018 as an administrative assistant in the property transfers department, headed by Angela Dunlop.

In September 2018, a Mr Bridge, a friend of Ms Dunlop, joined the firm as a paralegal.

The tribunal noted that Mr Bridge was “’talkative’ in the office and had a tendency to be loud … he also had a tendency from the start of his employment to make inappropriate comments”.

Ms Dunlop would step in ‘sometimes when she thought he might say something inappropriate’.

In February 2019, Ms Sutherland mentioned her grandmother was of Chinese descent. Mr. Bridge replied: “Does she own a chip shop, all the Chinese have chip shops?”

Ms Sutherland felt embarrassed and upset and found the comment offensive. A few weeks later, she told the company’s human resources manager but “begged her not to tell anyone else”.

However, the HR manager informally informed managing partner Beverley Watkins, who was angry and “disgusted” by the comment. She asked Ms Dunlop to tell Mr Bridge that what he had said was unacceptable and that if it happened again it would be extremely serious.

Ms Dunlop said she did, but the court did not accept her testimony about what she said.

“Mr. Bridge was a friend of Mrs. Dunlop. It was more likely, given Mr. Bridge’s reaction after the discussion, that he had simply been made aware of the allegation and not doing so again; we did not accept that the gravity nor the potential disciplinary consequences be imposed on him.

After the conversation, Mr. Bridge told his colleagues that someone had tried to get him in trouble, but it backfired and he didn’t even get a slap on the wrist.

The court said that this reaction “would have been upsetting for the claimant and that she would have re-emphasized 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 have not accepted the level of harm argued by the plaintiff’s lawyer,” labor judge Bux said.

The court concluded that this was “an act of harassment on the part of Mr. Bridge”. He rejected the company’s defense that it had taken all reasonable steps to prevent him from committing the act by requiring all staff to undergo equality and diversity training during induction and that refresher courses take place.

The judge said: ‘No evidence has been adduced as to what the training entailed. Although it was stated in the reasons for reply that Mr. Bridge had received training, no evidence[…]was provided that he actually received it and, therefore, no conclusion was drawn in this regard.

“It was significant that Mr Bridge had a tendency to make inappropriate comments, this was known to Ms Dunlop and she would intervene if she thought he was about to say something inappropriate.

‘It should have been obvious to Ms Dunlop that Mr Bridge had not considered any equality and diversity training he had received and had not appreciated the effects of the comments he was making.’

The court found the company had failed to apply its equality and diversity policies in a ‘sufficiently robust’ manner in relation to Mr Bridge.

It was “reasonably possible” for the firm to have asked him to take the training or redo it and to have told him to stop making inappropriate comments before February 2019.

At the same time, as Ms Sutherland did not wish to make a formal complaint, the court found it was ‘more of an error in judgement’ on Ms Dunlop’s part, rather than an act willful, not a fundamental breach of contract.

Among a series of other allegations, the court found that Ms Dunlop had yelled at Ms Sutherland twice. While “as a manager, more restraint should have been shown”, these were isolated incidents which did not prove discrimination, victimization or fundamental breach of contract.

There was also a team email from Ms Dunlop in January 2020 outlining the tasks that needed to be done while she was sick. He highlighted a single goal for Ms Sutherland, “if you just do that (which you should be)”.

The court acknowledged that she found the remark upsetting “and while we accept the intent behind it, it could have been better worded and was unreasonable”.

But again, he was not of a type likely to seriously damage or destroy the plaintiff’s confidence in the company.

The court said the incidents involving Ms Dunlop were ‘at most’ unreasonable behavior and there was a lack of evidence from which it could infer there was motivation due to or relating to gender and/or the 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 court accepted Ms Watkins’ testimony that the colleague was not fired because he could work in multiple departments without training and could help with technical issues. His decision made “logical sense”.

Overall, the company’s conduct was “not so serious that a reasonable person would consider there to have been a fundamental breach of contract,” Judge Bux concluded.

Ms Sutherland resigned in July 2020, claiming constructive dismissal. The court noted that, despite being wrong about the existence of a fundamental breach, Ms Sutherland waited more than six months to resign after Dunlop’s email.

“This was a significant lapse of time and the Claimant returned to work after her leave and we were satisfied that her return to work demonstrated that the Claimant intended to continue the contract and that any breach was confirmed. .”

He was awarded £8,500 for hurt feelings for Mr Bridge’s comment, including £500 to reflect his response after being questioned by Ms Dunlop, plus £1,000 interest.