The answer is yes, and both the Company and responsible Manager were held liable.
The recent case at the Employment Tribunal in Liverpool Mr A Nazarczyk v T J Morris Ltd and John Cowley(1) they found that the employer was vicariously liable for direct race discrimination after a Manager told the claimant of Polish nationality “that he and his family should go back to Poland”. The comment was made during a heated discussion or argument in relation to Mr Nazarczyk wanting to work on the same shift as his daughter.
The background of the case
Mr Nazarczyk (Claimant) was an employee of TJ Morris Limited based in Liverpool based retailer and was a Polish national.
The Claimant was concerned about his daughter (who also worked for the Company) walking home in the dark after 11 pm which he thought was an unsafe area, so he asked the Manager, Mr Cowley, if he could work on the same shift as his daughter. This request was refused and this resulted in a heated discussion which is when the comment was made:
"If you do not like it, pack yourself and your family up and go back to Poland."
Mr Nazarczyk raised a grievance about the comments made and this included utilising the appeal process but the grievance was rejected by two members of senior management who did, however, apologised for:
“…any misunderstanding as a result of miscommunication from either party involved.”
The Mr Nazarczyk brought a race discrimination against his employer and the Manager.
The related Law
The Equality Act 2010(2) , and ACAS guidelines(3) specify that direct discrimination takes place when someone is treated ‘less favourably’ than someone else because of their protected characteristics and in this case because of race or perceived race or the race of someone with whom they associate.
Employers can be held liable for breaches of the Equality Act on its own behalf, be held 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 a uniform, even where the relevant act was done without the employer's knowledge.
Employment Tribunal decision
Mr Nazarczyk alleged that a number of additional acts of race discrimination had taken place in the workplace, including:
· Mr Cowley would deny him leave unless a bottle of vodka was provided
· Mr Comley had ridiculed the death of the Polish President
· Mr Nazarczyk’s clean clothes being dumped on the floor by Mr Cowley
· There were general allegations that Mr Nazarczyk had been treated differently from his British colleagues because he was foreign
The Employment Tribunal(4) dismissed the majority of the allegations made by the Claimant on the grounds that some were out of time or there was insufficient evidence for the other. However, they upheld a claim of direct race discrimination in respect of the "go back to Poland" comment, even though and accepting that it was said, "in the heat of the moment".
The Tribunal concluded that Mr Cowley would not have made a similar comment to a hypothetical British comparator and the Tribunal did not accept Mr Cowley’s argument that he would have made the comment “go back to Bath” to a British worker from Bath, and in any event stated that the comment was not the same as it lacked racial overtones.
The Tribunal instructed TJ Morris to implement diversity training(5) for its staff, and for Cowley to apologise to the Claimant.
The ruling serves as a warning to employers that a single inappropriate comment in the workplace can amount to a successful claim for direct race discrimination(6) Some key points for employers to take away and to ensure that all reasonable steps have been taken to prevent such inappropriate behaviour occurring within the workplace. These could include:
1. Nazarczyk_v_T_J_Morris_Ltd_and_John_Cowley_2401275_2017_Full.pdf [Internet]. [cited 2018 Jan 3]. Available from: https://assets.publishing.service.gov.uk/media/59ca59fbe5274a7743d49564/Nazarczyk_v_T_J_Morris_Ltd_and_John_Cowley_2401275_2017_Full.pdf
2. Participation E. Equality Act 2010 [Internet]. [cited 2018 Jan 3]. Available from: https://www.legislation.gov.uk/ukpga/2010/15/contents
3. Acas advice: Equality [Internet]. 2016 [cited 2018 Jan 3]. Available from: http://www.acas.org.uk/index.aspx?articleid=1363
4. Employment Tribunal - GOV.UK [Internet]. [cited 2017 Dec 11]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal
5. Equality Act / Equal opportunities and fairness at work [Internet]. Castle Associates Ltd. 2015 [cited 2018 Jan 3]. Available from: https://castleassociates.org.uk/hr-training/equality-act-equal-opportunities-and-fairness-work
6.Race discrimination | Equality and Human Rights Commission [Internet]. [cited 2018 Jan 3]. Available from: https://www.equalityhumanrights.com/en/advice-and-guidance/race-discrimination