Can workplace “banter” cost an employer over £6 million?
In the case of Sidhu v Exertis, the Employment Tribunal held that Mr Sidhu sustained racial bullying by his colleagues, that was dressed up as “banter”.
Mr Sidhu was successful in his claims against the company and individual named respondents for race discrimination, racial harassment, breach of contract and constructive dismissal. A remedy hearing is now set to take place later this year, where Mr Sidhu seeks over £6 million for loss of earnings, injury to feelings, aggravated damages and injury to health for the psychological damage he is suffering, as he claims that he will never be able to work again. If awarded, this would be the largest compensation award made to an individual.
Mr Sidhu joined Exertis in 2012, and in 2015 sought a new role within the company. The new team he became a part of housed a culture of crude sexual innuendos, racial bullying and expressed explicit sexual references which were considered entertaining and a form of banter by the team. The Tribunal found that in order to fit into the culture “it was necessary to enter into jokes and discussions of that nature”. Unfortunately, the team targeted Mr Sidhu and repeatedly made discriminatory remarks and acts towards him. Examples include the team referring to Mr Sidhu’s surname as “siduko” and calling him an “Arab shoe bomber”; searching his home on google and likening the area to Aleppo; hiding his work equipment; standing to applaud him when he arrived late to work to humiliate him; and a colleague even refusing to hand over two of the accounts he was employed to manage. When Mr Sidhu reported the bullying to his manager, the tribunal found it was clear that his line manager’s primary focus was whether his team were meeting their sales targets, was not interested in Mr Sidhu’s concerns and failed to deal with them appropriately.
Mr Sidhu eventually resigned from the company on 24 May 2017 due to the acts of treatment he suffered. The tribunal found that in the absence of an explanation by the respondents, Mr Sidhu’s treatment was “because of or related to race”. The tribunal found that the conduct alleged by Mr Sidhu amounted to race discrimination, which had “the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading or humiliating or offensive environment for him”. The tribunal described the treatment as “a campaign of bullying”. The tribunal found that Mr Sidhu eventually resigned because of a “combination of everything that happened to him”, and that the acts of discrimination had a “significant influence” on his decision to resign, meaning that his constructive dismissal also amounted to an act of discrimination. All the other claims of race discrimination were considered as harassment as defined in the Equality Act.
In order to succeed in a claim for constructive dismissal, an employee must show that they have not acted in a way that suggests they have accepted the breach – this is called affirming the contract. Exertis argued that Mr Sidhu affirmed the contract by remaining an employee from 8 February 2017 (the day before he went on sick leave) to 24 May 2017. The tribunal however noted that during that time Mr Sidhu was off sick, and could not find that he did anything to affirm the contract. In any event, the tribunal found that Mr Sidhu received his grievance outcome on 18 May 2017, which the tribunal found was deficient in itself, and that Mr Sidhu was entitled to rely upon that outcome as being the “last straw”. The tribunal also found that Mr Sidhu was subjected to detriment on the ground that he made protected disclosures, and that Exertis were also in breach of contract as they had failed to pay Mr Sidhu his notice pay.
The claims also succeeded against three individually named harassers within the meaning of s26 of the Equality Act, meaning that they are personally liable as well as Exertis..
Mr Sidhu’s lawyer remarked how the situation was “’Lord of the Flies’ level of group condemnation”. Exertis tried to argue that they were not vicariously liable for the acts of their employees and that they had taken “all reasonable steps to prevent its employees from doing the acts alleged or anything of that description”.Any act of discrimination or harassment carried out in the course of employment will make the employer vicariously liable (unless the employer can show they took all reasonable steps to prevent the discrimination/harassment occurring). However, the tribunal was not shown records to indicate that any equality or diversity training had taken place prior to the allegations. Therefore, Exertis had not taken all reasonable steps to prevent the conduct.
“Banter” in the workplace is a constant headache for employers. It also is important to understand that simply because a victim may also have participated in banter previously, this does not preclude them bringing a claim. This case serves as a stark reminder that it is imperative for employers to provide appropriate harassment training regularly to its employees to discourage inappropriate behaviour in the workplace.
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