In the case of Mendez v Plasflow Limited ET1804070/2019 an Employment Tribunal held that a Black employee had been harassed when he was called a “black c***” and that the failure to deal with this incident properly amounted to direct race discrimination.
The facts in Mr L Mendez v Plasflow Limited
Mr L Mendez (the ‘Claimant’) commenced employment with Pasflow Limited (the ‘Respondent’) on 10 March 2008. The Respondent was part of a group of companies concerned with symphonic rain water management, working on the fabrication of HDPE pipe. The other companies within the group dealt with the installation of such piping within water and nuclear industries. Overall the group employed around 75 people of whom approximately 20 were employed by the Respondent company. A lot of the machinery used by the Respondent was potentially dangerous, thus the Respondent was particularly concerned that all necessary health and safety requirements were followed. The Respondent used a procedure known as ‘toolbox talks’ as part of the safety procedures and as set out in their staff handbook, which refers to the concept of safety intervention (whereby every employee has the right and duty to intervene when they identify what is described as an at risk behaviour or condition). Any interventions should not to include personal criticism or to ‘name and shame’ staff but more as a learning opportunity.
On 14 February 2019 Mr P Hamshaw prepared a near miss report after observing the Claimant showing another employee, Wayne Fereday, how to cut piping on a saw. Mr Hamshaw believed that this had been undertaken dangerously because the Claimant was holding the pipe in question on the saw whilst Mr Fereday was using the saw. After some delay the Respondent instructed another employee, Mr Whitehouse, to arrange for a toolbox talk to discuss the matter on 3 May 2019. Mr Whitehouse probably against the company policy, told the Claimant that the catalyst for the meeting was a near miss report concerning his actions. At this the Claimant became angry and flew into a rage, asking for the identity of the employee who had reported him. Mr Whitehouse told the Claimant it had been Mr Hamshaw who had prepared the report (probably against the ‘no blame’ approach expected in tool box talks). This further infuriated the Claimant and he went to look for Mr Hamshaw to confront him. The Claimant then went to find Mr Sanderson, the manager, and burst into his room whilst he was on the telephone conducting a meeting with other colleagues within the group.
The Claimant then found Mr Hamshaw and told him that he was a grass shouting abuse at him and threw a cup of coffee at the factory wall. Mr Hamshaw remained relatively calm during the altercation but did make comments to the Claimant in response. Mr Hamshaw maintained he said to the Claimant words to the effect “grow up, we are not at school” whilst the Claimant claimed he also said “shut up you black cunt” before these words. The argument continued and there appeared to have been threats of violence from the Claimant because the claimant had invited Mr Hamshaw to join him in the canteen to sort out their differences. Mr Sanderson was attempting to diffuse the situation and talking to the Claimant, and the Claimant stated that he needed to take an immediate holiday “before he hurts somebody” and he was allowed to go home as he may have been a danger to himself or others. He was suspended from duty following a decision by the general manager. The Claimant later complained to the general manager that Mr Hamshaw had called him a “black cunt” so should have been suspended rather than him.
The Claimant was called to a disciplinary meeting on 8 May 2019. At the end of the meeting the Claimant was told that he was being dismissed for gross misconduct. The claimant appealed against his dismissal arguing that he felt that he had been victimised, harassed and also “racially abused to which you have chosen to ignore”. He requested copies of statements which the Respondent had obtained. He went on to say that he felt that he had been treated differently to other members of staff at the respondent.
The reasons for the Claimant’s dismissal was set out in the dismissal letter on 13 May 2019 that he had “used violent, abusive and intimidating conduct on Friday 3 May 2019.”
The Claimant presented his claim to the Tribunal on 21 July 2019. The claims related to:-
- Harassment related to race (read our guide on race-related harassment in the workplace);
- Direct race discrimination (read our guide on direct race discrimination in the workplace);
- Unfair dismissal (read our guide to unfair dismissal);
The Claimant’s claim for harassment related to race was based on the altercation with Mr Hamshaw.
On direct discrimination the Claimant’s claim for less favourable treatment was based on several issues, mainly:-
- He was expected to operate 2 machines whereas white colleagues only one.
- Others were also operating machines unsafely on 3 May 2019 but were not reported.
- On 3 May 2019 the Claimant reported racist comments by Mr Hamshaw to the Respondent but he failed to act and suspended only the Claimant.
- The Claimant argued that an incident some three years previously whereby Mr Hamshaw and another employee had held down a third employee and put marker pen on his face had not resulted in any disciplinary action whereas the claimant had been dismissed for violent, abusive and intimidating conduct towards Mr Hamshaw on 3 May 2019.
In the claim relating to unfair dismissal the issue was around whether a fair process and been followed leading up to dismissal in comparison with the other employee involved and inconsistency with the treatment regarding the marker pen incident.
The decision of the Employment Tribunal
Direct race discrimination
On direct discrimination the ET did not uphold the following parts of the Claimant’s claim relating to direct discrimination:
- Operating two machines resulting in unfair treatment as it was shown in the evidence that other non-black employees did the same on occasion as required (and that the reason for treatment was therefore not race);
- The assertion that Mr Hamshaw was motivated by the Claimant’s race when making his report rather than reporting an unsafe working practice;
- The decision to progress the incident for a tool box discussion
- The ‘marker pen incident’, seeing this as falling more within the category of ‘horseplay’ not requiring disciplinary action as compared to the Claimant’s outburst.
The Employment Tribunal found in favour of the Claimant for the failure by the Respondent to act on the racist comments he reported as being less favourable treatment because of his race.
The Employment Tribunal found that that the Claimant had as a matter of fact been called a “black c***”. The Employment Tribunal found this to be unwanted conduct and they were satisfied that the comment had the purpose of violating the claimant’s dignity. The race-related harassment claim was therefore upheld.
The claim of unfair dismissal was upheld by the Employment Tribunal – the Employment Tribunal held that the Respondent failed to allow the Claimant to raise his argument that he had been racially discriminated at the disciplinary hearing and when he raised it at the appeal hearing it was not properly dealt with it.
Our lawyers’ views on the case of Mendez v Plasflow Limited
Stephen Norton, a lawyer at Redmans, commented on the case: “The Employment Tribunal in this claim were sufficiently convinced the Claimant had been subjected to racist comments by Mr Hampshaw during the altercation on 3 May 2019, and that Respondent had failed to address the Claimant’s concerns through a fair process. When reading the full case report it can be seen that the Employment Tribunal were convinced by evidence they had seen from Mr Hampshaw’s Facebook account that he had racist sympathies. The Tribunal therefore held that, on the balance of probabilities, he was more likely than not to have made the racist comments attributed to him.”
The decision of the Employment Tribunal in Mr L Mendez v Plasflow Limited ET1804070/2019 can be found here.