The Claimant, Mr Rathod, described himself as British Asian. He was employed as a car sales executive and became the only non-white member of an all-male sales team. Employment Judge Clark described the culture of the workplace as ‘laddish’, crude and immature. This culture was said to have developed to a more sinister level as it was infected by the overt prejudices, opinions and attitudes of some of its members. Mr Rathod was repeatedly referred to as ‘Chapati’ and ‘Poppadum’.
Despite this treatment, Mr Rathod tried to get on with his colleagues as best he could. The Judge accepted that the idea of belonging remained important to him for some time and resulted in him having to conform to the existing team culture.
Following the first national lockdown on 23rd March 2020, Mr Rathod set up a WhatsApp group for the sales team. This group was said to have allowed the extreme behaviour to continue. When Mr Rathod returned to work after three months of being on furlough he expressed his unhappiness to his manager saying he was sick of the banter. He lodged a grievance but his concerns were dismissed. Mr Rathod then went on sick leave and at a later date, he put forward a grievance regarding a specific colleague referred to as ‘O’ and this grievance was partially upheld. ‘O’ then shared copies of messages where Mr Rathod was shown to have shared offensive jokes and as a result, Mr Rathod was subject to a disciplinary hearing before being summarily dismissed.
Employment Judge Clark concluded that:
“there was clearly a glaring issue in need of addressing in view of the evidence that had emerged from Mr Rathod’s original grievance and later disciplinary. If the mantra of zero-tolerance is to be accepted, one might feel entitled to expect there to be evidence of that investigation and further disciplinary action”.
The respondent’s franchise finance leader investigated the grievance and she too seemed to acknowledge:
“there was a much wider problem for the respondent in the sales team, yet the respondent has adduced no evidence of what actions it took in respect of that…The employer had a solid basis for at least suspecting, if not evidence to believe, that others had conducted themselves in the same way as O and Mr Rathod. It necessarily follows that a number of individuals conducting themselves in a like manner faced no disciplinary action at all”.
Mr Rathod’s claim for unfair dismissal and breach of contract was successful. Remedy, if not agreed by the parties, is to be determined at a later hearing.
What can employers do?
It is important that any jokes, or banter that might be offensive to another employee are avoided. So-called banter in the workplace can lead to a person facing disciplinary charges and another claiming for alleged discrimination.
All employers should have clear policies on bullying and harassment and staff should be encouraged to undergo training to understand these policies. Any grievances should be dealt with promptly and formally and staff should be reminded that they can raise concerns and the procedure for doing this.