Southwark Council racially discriminated against Black employees
The Employment Tribunal has held that Southwark Council directly discriminated against, harassed, and victimised Ms Wendy Andrew and Mr Kevin Baptiste because they are Black. The Tribunal heard evidence from the Claimants, as well as a HR Partner and Head of Service.
The Claimants worked in a children’s social care team. The Claimants alleged that a member of the team made racially discriminatory comments on 14 September 2018 at a team meeting, in the presence of the team manager. The team member allegedly stated “it’s Blacks over there and whites over here” and asked “Why can’t Wendy and Kevin do it, oh I forgot they don’t work with white middle class families.” The team manager allegedly recorded these comments as ‘banter.’ No action was taken by the Respondent against the team member.
On 10 June 2020, a team member lost his temper with Mr Baptiste in an online meeting. All participants to the meeting noted that Mr Baptiste’s behaviour was professional and that the team member acted disrespectfully. Despite later being established as a clear breach of policy, the team member was never disciplined for this incident.
Mr Baptiste subsequently raised a grievance, and referenced the 2018 comments. He was placed under a different line manager and no longer attended weekly team meetings. He was not allowed to return until the grievance investigation and outcomes were complete. This never occurred, so eventually Mr Baptiste asked to move to another team. The Tribunal accepted that Mr Baptiste was excluded from the team and would have preferred to return to his role there.
Mr Baptiste’s grievance was investigated and upheld two of three allegations; he was not permitted to comment on the 2018 incident. 10 recommendations were made to the Respondent, including that the team member apologise to Mr Baptiste and then engage in mediation with him to enable Mr Baptiste to return to full duties, as well as broader recommendations surrounding anti-discriminatory and anti-racist training. Contrary to evidence given by Head of Service, the Tribunal found that, apart from mediation with Ms Andrew, the Respondent did not action these recommendations.
In July 2021, the Respondent commissioned an independent investigator to independently investigate complaints raised by the Claimants. The Respondent indicated that the independent investigator's remit included investigation of whether systemic racism occurred within the Service, however investigating racism was not an agreed Objective of the investigation. The independent investigator took 8 months to deliver his report at substantial cost to the Respondent. It was described by the HR Partner as ‘not adequate’ in their evidence. Nevertheless, the HR adopted and expanded upon this report to form a grievance outcome to the Claimants, agreeing that Mr Baptiste’s removal from the team was unfair and recommending his return. The HR Partner was cross-examined about incidents of alleged discrimination that formed part of their outcome report, including the allegation that only BAME members of the team made home visits during the initial stages of Covid-19, and that BAME employees were treated differently from white employees.
In April 2022, Ms Andrew returned from sick leave and was apprehensive about rejoining the team. She was moved by the Respondent to another team and did not return to the team. The claimants allege that a team member began making accusations against them, which the Head of Service accepted in cross-examination was ‘in retaliation.’
The Claimants appealed the outcome of their grievance. The appeal outcome, delivered in September 2022, stated that the recommendations made over 2 years ago had yet to be actioned, and that management could compel an apology from the team member. The Respondent’s witnesses confirmed that this instruction was never issued. The appeal panel recommended that a plan be drawn up to implement the outstanding recommendations and return Ms Andrew to the team. The Tribunal did not accept evidence from the Head of Service that they had embarked upon this task.
The Tribunal concluded that the Claimants had been treated less favourably than the team member and considered it was due to their race that the Respondents had “failed utterly” to address the Claimants’ complaints. In the Tribunal’s judgment, the Respondent did not want to take disciplinary action against the team member as they might have found that the Claimants’ race was a factor in their actions, tainting the organisation. Thus the burden of proof shifted. The Tribunal did not accept the Respondent’s alternative argument that it would have been disproportionately disruptive to remove the team member from the team. The Tribunal also held that the acts complained of as harassment did take place, constituting unwanted conduct, and were clearly linked to race. The Tribunal judged that the Claimants gave “clear, consistent and heartfelt” evidence of the effects the Respondent’s actions had on them, including that their professional reputations were stained and that, they allege, veiled threats were made against them by a team, member. The Tribunal further held that the Claimants were victimised for raising their complaints.
Ms Andrew received an injury to feelings award of £20,000 and Mr Baptiste received an award of £25,000. Both received a 15% uplift due to the Respondent’s failure to follow the ACAS Code on Disciplinary and Grievance Procedures, consisting of the “inordinate and inexcusable” delay in the Respondent’s grievance procedures, as well as their failure to act consistently.
The Claimants were supported by their trade union, UNISON. Lameesa Iqbal, instructed by Thompsons Solicitors, acted for the Claimants. A link to the judgment can be found here.
