Discriminatory comment led to employment tribunal appeal being granted

A Romanian joiner has been allowed to appeal against his employment tribunal loss as the original tribunal may have made legal errors. The original claim was that the employee was dismissed because of his nationality and for disclosing unsafe working practices.

Whilst a manager told the employee “We could not have a foreigner leading a team of Brits”, the employment judge concluded that this was not why he was made redundant, and the tribunal panel was “satisfied” that he was chosen for redundancy because it was believed he was not compliant with the stated company values.

The employee claimed that the manager who made the racist remark was also the one who selected him for dismissal and stated that the findings failed to consider whether an appropriate comparator (a British joiner) would have been treated the same way in a similar situation. Moreover, the failure to consider the comment in the conclusion was, according to the employee, a “howling omission and an error of law”.

The Employment Appeal Judge agreed with the grounds of appeal and a date has been set for the appeal to be heard. The discriminatory comment” is potential evidence that could imply that the manager had discriminatory views and this same manager was involved in the decision to dismiss.

Areas that will be examined in the appeal are as follows:

  • Was the manager “consciously or unconsciously biased by the claimant’s nationality”.
  • The issue burden of proof – this will be placed upon the employer after finding the manager’s “foreigner” comment proved.
  • A consideration that the employee was potentially a whistle-blower.
  • Whether there was a “genuine redundancy” as the employee claimed the company was advertising for joiners at the same time as he was being dismissed.

This case reminds us of the need to ensure that managers understand equality legislation when making key hiring and dismissal decisions.

121 HR Solutions can deliver bespoke workshops on this subject, ensuring that managers are well trained and that the workplace environment is free from discrimination. If you would like more information, please contact us at enquiries@121hrsolutions.co.uk.

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