In the case of Cape Industrial Services Ltd and Mr Mark McCoag: 3400891/2016 the Employment Tribunal held that, by consent, the claim of race-related harassment succeeded but that the claims for direct race discrimination and constructive dismissal succeeded. The Employment Tribunal awarded Mr Atkinson £8,000 compensation in respect of the claim of race-related harassment.
The facts in Cape Industrial Services Ltd and Mr Mark McCoag
Cape Industrial Services Ltd (“Cape”) provides maintenance services on onshore and offshore oil and gas installations. Mr Atkinson was a Rope Access Regional Manager at Cape.
On 28 July 2016 Mr Atkinson was present during a conversation between Mr McCoag and colleagues. During this conversation, when complaining about his son’s lack of application at work, and in Mr Atkinson’s hearing, Mr McCoag made the comment: “all I’ve done is work like a fucking nigger all my life”.
Mr Atkinson submitted a grievance regarding Mr McCoag’s comment. He then alleged that he had been subjected to the following allegedly discriminatory conduct by Cape:
- That he was told that he could “expect some flack back” as a result of his grievance;
- That he was told at a grievance meeting on 27 May 2016 that Mr McCoag’s comment was not considered to be gross misconduct;
- That Cape had failed to engaged pro-actively and/or appropriately with him in the conduct of the grievance investigation (by not informing him of the outcome of Mr McCoag’s disciplinary proceedings);
- That Cape treated racially abusive language as less serious than non-racially abusive language; and
- That the above allegations of discrimination individually or cumulatively constituted a fundamental breach of Mr Atkinson’s contract of employment, rendering his resignation both unfair and discriminatory
The decision of the Employment Tribunal in Cape Industrial Services Ltd and Mr Mark McCoag
The parties agreed that Mr McCoag’s comment on 4 May 2016 constituted race-related harassment, and the Employment Tribunal upheld a claim for race-related harassment (under section 26 Equality Act 2010).
The Employment Tribunal dismissed, however, Mr Atkinson’s claims for direct race discrimination (under section 13 Equality Act 2010) and constructive unfair dismissal – the Tribunal found that the “flack” comment had not been made, that Mr Atkinson had not been informed at the relevant meeting that Mr McCoag’s conduct was not gross misconduct, that Cape had engaged proactively and appropriately with Mr Atkinson with regards to the grievance process, and that Mr Atkinson had not resigned because of a fundamental breach of contract.
Our solicitors’ view on Cape Industrial Services Ltd and Mr Mark McCoag
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must ensure that fair, impartial and thorough grievances were undertaken (as the Tribunal found had been the case in this case), in order to ensure that internal mediation procedures are as successful as possible and, further, that potential discrimination cases are avoided”.
The judgment of the Employment Tribunal can be found here.