Hello and welcome back to your weekly case law update. Last week was our monthly employment law update with features on Naga Munchetty, the British Medical Association and bearded police officers. There was also an update about PJH Law’s December Seminar (of which more later). Prior to that, our last case law update was about trade union activity and health & safety dismissals.

This week, our case concerns bullying and harassment on the grounds of race and religious beliefs. (Blatant seminar segue alert!) Bullying and harassment will also be one of the features of our December seminar to coincide with the release of Phil’s new book, A Practical Guide to the Law of Bullying and Harassment in the Workplace.

The seminar will be on Thursday 5 December 2019 at the William Cecil, Stamford. The first 30 guests to book on will receive a discount if they input the code FIRST30 and also receive a complimentary goody bag of Phil’s books and a luxury, bespoke HR planner for 2020 designed by PJH Law and produced by The Stamford Notebook Company. To book tickets or find out more please visit our event page. We hope to see you there!

Segues aside, this week’s case concerns harassment on the grounds of race and religion as well as holiday pay and unlawful deductions from wages. The employer in this case is a local Peterborough recruitment firm and is only an Employment Tribunal claim. As it is not an appeal it is not binding law but is indicative of how the Employment Tribunal will determine such claims.

Noreen v Recruitment Finder Limited

 There is no question this week, instead the case is titled:

How not to manage bullying and harassment!

Ms Noreen, the Claimant, was a British Pakistani Muslim who worked for Recruitment Finder Ltd, the Respondent, as a recruitment consultant. The Claimant’s contract included provision for payment of bonuses for each new client and successful placement together with a mileage allowance of 30p per mile.

During her employment the Claimant was subjected to several instances of harassment on the grounds of her race and/or religion by Paul Clarke, the Respondent’s director and the Claimant’s line manager. The harassment included:

  • Being collectively described as “you Pakis” whenever Mr Clarke referred to British Asian people.
  • Being told that fasting for Ramadan was a “lot of bollocks to me.”
  • Being told that she looked like a “curry muncher” due to her race and weight.
  • Having any food brought from home referred to as curry regardless of whether it was pasta, sandwiches or any other food stuff.

The Claimant was also told by Mr Clarke that if she took annual leave it would adversely affect her position. For this reason she only took leave on Christmas Day, New Year’s Day and Easter Monday. This meant she was prevented from taking 25 days leave throughout her four years of employment.

The Claimant pointed out to Mr Clarke that she had placed more successful candidates than him. Following this she stopped receiving her bonus and fuel allowance worth £90.00 and £195 per month respectively. The Claimant was then told by Mr Clarke that she was to be made redundant.

The Claimant was told she would receive all monies owed to her but upon termination of her employment received only basic pay for her final month of employment. Mr Clarke then instructed the Respondent’s staff not to contact the Claimant and not to accept her calls or transfer her through to Mr Clarke.

The Claimant brought claims before the Employment Tribunal. The ET allowed the claim, which was not defended by the Respondent. The ET awarded the Claimant over £22,000.00 which comprised of:

  • £7,500.00 for injury to feeling
  • £1,185.00 for statutory redundancy pay
  • Over £4,000.00 in accrued but untaken holiday pay
  • £3,800.00 in respect of unpaid bonuses
  • Over £3,500 in respect of unpaid fuel allowance
  • Interest of over £2,400.00 on top of the injury to feeling award was also awarded for the Respondent subjected the Claimant to harassment for such a prolonged period of time.

The Takeaway points:

The first lesson is that this is an example of the ET exercising its power to award interest on top of compensation. Interest is common in Country/High Court claims but less so in the Employment Tribunal. In discrimination claims, the ET can award interest from the mid-point of the date of the act to the date of award. In this case, as such a long period of time had elapsed between act and award the interest was nearly three years’ worth!

This case shows how difficult it can be to for employees to challenge bullying and harassment issues when the bullying and harassment comes from senior management. In this case the Respondent’s Director was the person committing the discriminatory acts, these acts went unchallenged as there was no one else who the Claimant, or any other employee who disagreed with the conduct, could complain too.

Additionally, this case shows how not defending a claim at either liability or remedy stage can result in large awards being made against the employer. Even if the employer conceded liability they could have a) allowed the claim to proceed quicker and reduce the amount of interest due; and b) made other submissions as to why the award should be lower – e.g. no evidence of injury to feeling or evidence that some fuel or bonuses were paid. Even if the claim was not defended at liability stage, employers can defend at remedy and the Respondent has shot itself in the foot by not doing so.

This case is also another example of the ET awarding compensation to employees who were unable to take their holiday pay. If an employee is unduly prevented from taking holiday, the right to pay for that holiday is carried over regardless of what the contract states.

In this case, the Director is also lucky that the Claimant was self-represented and perhaps not aware she could claim against him personally. This would have both protected her from the possibility of the company going into liquidation and avoiding paying up but also meant the Director’s personal assets – including cars and houses – could be seized if he failed to pay the award!

Finally, as ET claims are now available online and thus easily reported on, it highlights the importance of settling weak claims that could damage the employer’s reputation. For a company that lists its core values on its website as leadership and teamwork, a finding of fact that the Director was the perpetrator of racial harassment could be very damaging!