Following the high-profile media coverage of the Black Lives Matter movement employers should be more aware than ever of the importance of encouraging equality, diversity and inclusion in the workplace. Handling internal complaints efficiently and effectively is of critical importance to employers looking to successfully defend claims of discrimination and harassment.
In the case of Muna Abdi v Deltec International Courier Limited, the Employment Tribunal (ET) recently ruled in favour of an employee who brought a harassment claim involving alleged discriminatory remarks made in a ‘WhatsApp group chat’ by her colleagues.
Case background
Ms Abdi (M), a black woman of Somali origin, was employed by Deltec International Courier Limited (Deltec) as an Evening Operations Clerk. One day in the office, a discussion between 5 members of staff started which, in M’s opinion, escalated into an argument. The argument involved two members of staff (O and T) telling M that ‘the majority of crimes in England are made by black people’.
Some time later, M inadvertently saw a ‘WhatsApp group chat’ on a computer screen, of which O and T were participants. In that group chat they made further offensive and discriminatory remarks about race, religion and gender. The time stamp of the messages shows them having been sent around or after the argument in the office about race. M complained about the situation to her manager but that complaint was not progressed further, her manager describing it as a ‘he said she said’ scenario.
M later viewed the same WhatsApp group chat and saw further messages of a similar tone and content. M complained again and was moved to a different department whilst her complaint was dealt with by Deltec’s CEO.
As a result, Deltec disciplined the employees involved in the group chat, dismissing some and issuing others with final written warnings. Despite these steps, M felt the employees who had not been dismissed kept staring and smirking at her. M resigned with immediate effect and brought claims of harassment and for equal pay (the latter being unsuccessful) at the ET.
Under Section 26 of the Equality Act 2010 (EA 2010), it is unlawful for one person to harass another because of one of the protected characteristics (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).
The statutory definition of harassment is satisfied where a person (A) harasses another (B) by engaging in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
- violating B's dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The EA 2010 also contains a defence available to employers facing harassment claims where they can show that they took all reasonable steps to prevent the harassment taking place. The Equality and Human Rights Commission guide on the EA 2010 advises that all employers will be expected to have in place:
- An anti-harassment policy that is communicated to workers and is effectively implemented, monitored and reviewed.
- An appropriate procedure for reporting harassment, protecting victims of harassment and taking action if harassment occurs.
Other reasonable steps may include:
- Regularly training managers and supervisors in equal opportunities and harassment issues.
- Taking steps to deal effectively with complaints, including promptly and thoroughly investigating complaints, and taking appropriate disciplinary action against harassers.
The ET upheld M’s claim that she had been unlawfully harassed. The ET found that there was evidence that the comments (including the WhatsApp messages) were unwanted comments relating to race that had both the purpose and the effect of creating an intimidating, hostile, degrading, humiliating and offensive environment for M.
In its judgment, the ET was critical of the way M’s manager handled the situation, stating “The words and actions reflect poor managerial approach, potentially coloured by self interest and desire to protect his friends.”
Although only an ET case, it highlights the importance of digital communications and social media, with the employer in this instance being held liable for the content of messages sent by employees supposedly ‘outside’ of work.
Employers should ensure that any policies on use of IT systems, instant messaging and social media also reflect the values of their Equal Opportunities Policy.
