Race is one of the nine ‘protected characteristics’ covered by discrimination law (Equality Act 2010), meaning that an individual cannot be discriminated on the basis of their race. Examples of prohibited discrimination include direct and indirect discrimination, harassment, and victimisation.
In the recent case of Oguntokun and Omar v Go Motor Retailers Ltd and others, Stellantis & You, were reminded of the importance of monitoring employee behaviour and just how easy it is for an employer to be liable for the actions of one or two employees.
In the above case the Tribunal found that two Stellantis employees had used racially charged and offensive language and actions towards Mr Oguntokun and Ms Omar on the grounds of their race.
Ms Omar, who hails from Somalia, was referred to as a ‘Somali Pirate’ among other racially charged language including ‘your lot’ ‘jungle’ and comments regarding ‘Sniff Carpets’ when praying. The behaviour even went as far as to spray her with air freshener while commenting about her ‘Somali smell’, and ‘bullshit smell’. Ms Omar was further discriminated against by being excluded from a WhatsApp group for workers on sick leave as well as being informed she would not be paid for her sick leave. Ms Omar subsequently resigned as a result of this conduct.
With regards Mr Oguntokun, it was found that the same Stellantis employee(s) referred to him as a ‘Black Bastard’ and that black customers were referred to as ‘Your Lot’. Furthermore it was found that he was subject to harassment in the form or racially charged ‘banter’ as well as direct race discrimination in other decisions including denying him training, disciplinary decisions and redundancy and grievance processes
In conclusion
Whilst this case does not consider anything new from an employment law standpoint, it is a good example of the requirement for vigilance and action within the workplace. The case also issues a stark reminder about the use of the “banter” defence and where a comment crosses the line “beyond the type of upset or annoyance that can sometimes occur in an employment relationship when different people have different points of view”.
In their defence, Stellantis & You did provide training and resources to the managers concerned, including diversity training and bully and harassment training. Some of the issues were investigated. Unfortunately, insufficient steps were taken to ensure the employees’ actions were monitored or that conduct was not repeated by the managers concerned and Stellantis & You were ultimately liable for the conduct. Therefore, it is key to not simply view training as a tick-box exercise but to monitor the implementation and compliance with the training where possible.
As this advice is general in nature and will need to be tailored to any one situation. As an RMI member you have access to the RMI Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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