Was an employer’s response to race discrimination discriminatory?

In the case of Jayeola v Commissioners for Her Majesty’s Revenue and Customers, an employment tribunal (ET) was tasked with assessing whether an employer’s response to a complaint of race discrimination involving a third party contractor was in itself discriminatory.

This case centred around an employee of Her Majesty’s Revenue and Customs (HMRC), Mr Jayeola, who was of Nigerian descent. The employer, who had a zero tolerance policy approach towards race discrimination, routinely hired cleaning staff through third party contractor G4S. As part of this relationship there was a written agreement between both parties which stated that all cleaners required HMRC’s approval and that G4S were responsible for dealing with any complaints regarding the cleaners’ conduct.

Mr Jayeola alleged that on one occasion, during a blackout, a cleaner contracted to the business from G4S made a racist remark towards him by stating ‘It’s a good thing you’re wearing a white shirt or I wouldn’t have seen you.’ Following this incident, Jayeola took time off work due to stress and explained to his employer that his mental health had been affected by what he described as a ‘racist culture’ that existed in the workplace. Jayeola also referred to three other unrelated acts of discrimination that he had experienced since commencing his employment with HMRC.

Following this, a senior manager at HMRC raised Jayeola’s complaint with G4S, who after a delay of two months confirmed that the cleaner had received a verbal warning and that no further action was required. The employer accepted this decision and told Jayeola that if he chose to return to work, there was a chance he would come into contact with the cleaner again. Jayeola argued that the cleaner should either be dismissed or moved to a different location in the building in order to facilitate his return, however the manager was informed by the employer’s HR department that they could not make such an arrangement. Other alternative arrangements were suggested to Jayeola, however he refused these and chose to bring a claim for race discrimination to an ET, arguing that his requests had continually not been considered or responded to.

Having examined the evidence, the ET found that Jayeola had suffered race discrimination in accordance with S13 of the Equality Act 2010, believing he had been subjected to less favourable treatment on account of his race. The ET found that the employer could, and should, have taken additional steps to assist the employee, and likely would have done if he was white.
Decisively the ET explained that the employer was unable to provide satisfactory evidence to show they had properly followed their own equality policy, having allowed the G4S cleaner to return to the same floor as Jayeola despite having a supposed ‘zero tolerance approach’ towards racism. The employer therefore failed to prove that their treatment of Jayeola was not an act of discrimination based on his race.

This ruling should remind employers that it is not enough to simply have an equality policy in place and they must instead ensure they follow it to the letter to avoid claims of discrimination. Resolving disputes can also be particularly difficult when dealing with contractors, however employers must work to protect their staff from continued harassment from any third parties.

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