In the case of Pasha v Elaine Investment Management Ltd & Zhang ET/2208469/2016 the Employment Tribunal found that the CEO of the employer had subjected the then-Managing Director to race-related harassment and had also dismissed him for a discriminatory reason.
Factual background in Pasha v Elaine Investment Management Ltd & Zhang
Mr Pasha, an accountant with 30 years’ experience who holds a British passport but is of Pakistani national heritage, commenced Elaine Investment Management Ltd (“EIML”) on 15 August 2016 (with an initial probation period of 6 months); prior to joining the company he undertook an interview with the CEO of EIML, Elaine Zhang, on 9 June 2016.
On one of the first days of Mr Pasha’s employment he was told by Ms Zhang, who is Chinese, that Pakistanis, Indians and Chinese were able to work together because they were all “crooked”. Mr Pashsa was surprised and upset by this comment, although he did not complain at the time, as he took great pride in his integrity, which is an essential quality for an accountant. He did, however, correct Ms Zhang’s characterisation of Pakistanis at the time and explain that he was a man of integrity.
During the first few weeks of Mr Pasha’s employment Ms Zhang became disillusioned with his performance – she asserted that he was supposed to ‘clock in’ with her at 9am and ‘clock out’ by contacting her at 6pm (and she asserted he had not done so), that his typing was not up to speed, that he had allegedly embellished his CV, and that he was allegedly slow to chase up voice messages that she left.
On 7 September 2016 at around 5pm Mr Pasha had a telephone conversation with Ms Zhang. In this telephone conversation they discussed Ms Zhang’s request for him to source a particular letterbox for EIML’s property in Lancaster Gate. This had been ordered but had not arrived. Mr Pasha sensed Ms Zhang’s frustration over the telephone, which culminated in her telling him “you Pakistanis are completely useless. You are wasting my money and wasting my time”. She then instructed Mr White, the Office Manger, to dismiss Mr Pasha.
Mr Pasha subsequently made Employment Tribunal claims for ace-related harassment and direct race discrimination (arguing that his dismissal was discriminatory).
The Employment Tribunal’s decision
The Employment Tribunal upheld Mr Pasha’s claims for race-related harassment and direct race discrimination.
With respect to Mr Pasha’s claim of race-related harassment, the Tribunal held that the comments by Ms Zhang in August 2016 (that Indians, Pakistanis and Chinese were crooked) and 7 September 2016 (“you Pakistanis are completely useless. You are wasting my money and wasting my time”) had occurred as Mr Pasha had alleged and, further, that they were comments which were related to Mr Pasha’s race and reasonably had the effect of violating his dignity.
With regards to the claim of race discrimination, the Employment Tribunal held that, although it accepted that Ms Zhang had taken issue with some aspects of Mr Pasha’s performance, her view of Mr Pasha was “infected” by her stereotyping of him in accordance of her perception of his race (and that she believed that “Pakistanis are completely useless”). The Tribunal therefore found that the burden of proof had passed to EIML and Ms Zhang to show that Mr Pasha’s race played no part in his dismissal; the Tribunal found there was insufficient evidence to discharge this burden of proof.
Our solicitors’ comments
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that companies must be careful to ensure that employees – even senior employees – are subjected to equality and diversity training, and that stereotypical assumptions are not made of colleagues based on their race (or any other protected characteristic). ”
The Employment Tribunal’s judgment in Pasha v Elaine Management Limited & Zhang can be found here.