A case involving a Polish employee being told to “go back to Poland” has provided a timely reminder for employers that a single inappropriate comment by employees could lead to a successful discrimination claim.
In Nazarczyk v TJ Morris Limited and anor, there were a number of allegations made about a colleague’s treatment of non-British staff. The incident in question occurred in October 2016 when the employee asked his colleague if his daughter could work the same evening shift as him. The employee was concerned with his daughter travelling home by herself through an unsafe areas if she worked another evening shift. The colleague informed the employee that it was not his decision to make but was one that would need to be addressed with the night shift supervisor.
The employee refused to accept this explanation and a conversation was held where the employee mentioned his daughter felt unsafe because it was not her city and she did not speak the language. The colleague became angry as he thought this was a criticism of his home city and said words to the effect of “if you do not like it, pack yourself and your family up and go back to Poland”. The employee raised a formal grievance but this was rejected. An appeal against this decision was also rejected.
The employee made claims of race discrimination. At tribunal the colleague explained that he would have had a similar conversation with a British employee and felt he would have told an employee from Bath to move back to Bath if they didn’t feel safe in Liverpool. Therefore, he explained, he did not treat the Polish employee any differently than he would have treated a British employee.
The employment tribunal found the comment by the colleague was inappropriate and was directly discriminatory on the grounds of race. The colleague would not have told a hypothetical British employee to “go back to Poland” and the example the colleague gave in evidence was an incorrect comparison because it did not have any racial connotations. The employer was liable for the direct discrimination and, in advance of a remedy hearing, the tribunal ordered the employer to put in place diversity training and to ask the colleague to apologise to the employee.
What this means for employers:
- Employers can be found vicariously liable for the discriminatory actions of their staff where these are carried out ‘in the course of employment’.
- Employers can defend against vicarious liability if they can show they have taken all reasonable steps to prevent the discrimination occurring.
- All employers should be carrying out equality and diversity training across their workforce. Having examples of discriminatory behaviour is useful and these can include examples of single comments or one-off acts that may constitute discrimination. Managers should also receive additional training on spotting incidents of discrimination
- Employers can continually review whether there are any discrimination concerns or views within their workforce and take proactive steps to combat these. Repeating training following an allegation of discrimination can provide a useful reminder.
- Carrying out formal disciplinary action against those who carry out discrimination will, in most cases, stop future acts of discrimination and help reduce the risk of facing a, potentially, very expensive claim at tribunal.