The £1,500 Racial Sentence.   How a few words can cost a lot of money in a race discrimination case.

Grumpy old employers.....   coping in the world of the '80s generation

It's not just what you know, but who you know........   How to protect your contact lists when an employee moves on

The £1,500 Racial Sentence.

It all started with Ms Nyateka, a young black woman who worked at the Kentucky Fried Chicken Restaurant in Sheffield. It was a fun place to work. Most of the staff were young, some were students and there was lots of banter going around. The black members of staff often called each other “nigger” or “paki” and the women called each other “bitches”. The Manager was a young white guy called Ben. He was well thought of by the staff and didn’t get involved in the banter.

Ms Nyateka was a good employee and had been promoted to the position of Team Leader. That evening though, she wasn’t in a good mood. For one thing she wasn’t happy about her pay. She had raised the matter with Ben a number of times but nothing had been done. It was Ben’s day off today but she had just seen him arrive for work.

When she asked him what he was doing at work he said he had to attend a management meeting. Ms Nyateka was dismayed. As a team leader she always attended management meetings. She asked Ben why she hadn’t been invited. He told her that she only wanted to go to the meeting to complain about her pay. She wouldn’t give up and kept asking Ben why she couldn’t go. Finally Ben snapped. “Maybe it’s because I’m being racist to a black woman” he said.

And that was it. The fifteen hundred quid sentence. A hundred and fifty nicker a word.

So how come it was such an expensive sentence?  

Well Ms Nyateka was upset by Ben’s answer. She went home and she complained.  

The Company did the right things. The HR department investigated. Ben received a warning. All members of staff received equal opportunities training and advice about “banter”.  

But Ms Nyateka stayed upset and didn’t return to work. The fact that the Company didn’t pay her at all while she was off didn’t help to soften her feelings. And even though the investigation had exonerated her, she wasn’t happy that the person carrying out the investigation never spoke to her. Eventually she took her complaint to a tribunal.  

Because she didn’t go back to work at the restaurant she claimed unfair dismissal. She lost this claim because the tribunal decided that she had resigned.  

However she also claimed race discrimination because of what Ben had said to her. The Company put up the defence that she herself often used discriminatory language like “paki” and “nigger” so how could she complain.  

The tribunal decided that Ben’s comment to her was discriminatory because it amounted to racial harassment.  

And because it was a discrimination case they were bound to award an amount for injury to feelings. Guess how much they awarded? Fifteen hundred of course.  

And what did Ms Nyateka spend her fifteen hundred quid on. Well we don’t know for sure but I bet she never saw a penny after she paid her lawyer’s bills. Two or three days tribunal plus an appeal hearing doesn’t come cheap. By the way, her £1500 award was reduced to £1,250 on appeal.  

It looks like a case where nobody won but the lawyers. The Company’s legal costs must have been enormous. And what are the lessons? The obvious one is to avoid racist remarks. That was one expensive sentence wasn’t it?  

But maybe there’s more to it. Ms Nyateka started with a grievance about her pay. Then after she had been racially abused she wasn’t paid at all. Then she wasn’t even spoken to during the investigation of her complaint. The person who carried out the investigation said there was no need to talk to her because he accepted that her statements were truthful. But in hindsight I’m sure they can see how this young woman probably felt more and more isolated, as if the company didn’t care about her.  

This case wasn’t really about a few words which cost £1500. It was about all the words which were missing. It was the lack of personal contact and care which ended up costing the company an awful lot of money.

Grumpy old employers.....

Young employees just ain't what they used to be....  They appear for work in the most bizarre clothing styles, with random piercings and unable to function socially unless they have a mobile phone glued to one ear. A friend of mine recently conducted a job interview with a young lady who proceeded to answer her mobile phone in the middle of her interview, and only resumed interest in the interviewer once she'd finished her conversation. (She wasn't shortlisted for a second interview.......)

And then there's all this social networking on the internet. According to a recent survey by YouGov among 2,629 adults aged 18-29.

• 71% of office workers access social networking sites at least 'a few times a week'. One in three (39%) access them several times a day.
• 27% of office workers spend three or more hours a week using these sites when at work.
• 42% of office workers have discussed work-related issues on these sites.

The retailer Argos recently sacked an employee for putting dergoratory comments about the company on his Facebook entry.

But it doesn't all have to be negative if you can find a way to communicate on the same level. One Social Care organisation, faced with a crisis in attracting younger people into home care roles, developed vacancy notices in 'text speak', printed them on postcards and distributed them in youth centres and careers offices. Interest in vacancies from the under 25's increased noticeably as a result.

You can also turn network sites such as Facebook to your advantage, if done with care. Finding an applicant's personal page can help you match any information on the CV with details given on the site  (plus identify any tendency to bad mouth current or previous employers.....) Just remember that accessing someone's personal webpage may give you a great deal of information on areas of potential discrimination such as their ethnicity, religious views and sexual orientation, so only allow internet searching on potential candidates by people who are trained in equal opportunities.

And what about internet access at work? A blanket ban on internet access is the most effective way of ensuring against abuse of the system, but can leave employees feeling that they are not trusted or empowered. Consider opening certain legitimate site to access for work purposes, or allowing employees access during breaks. A good e-mail and internet policy will help you to ensure appropriate behaviour on-line, as long as this is well communicated to all staff.

If you need help drafting or reviewing internet and e-mail policies, feel free to contact us.

It's not just what you know, but who you know........

Have you ever wondered who actually owns the contact list an employee develops at work and whether they really can take it with them when they go?

Picture the scene: you're at one of those breakfast seminars networking like a mad thing, swapping business cards like children hooked on Pokemon cards (remember those??). Be honest, at the back of your mind are you thinking that some of these contacts might help you in the next career move.....?

Mr. Ince certainly thought his contacts list belonged to him - he was a former journalist working for a company called PennWell Publishing (UK) Ltd as a publisher and conference chair. During his employment he created and maintained a contact list on PennWell's Outlook system, which included personal contacts, journalistic contacts and contacts he had made before his employment started, as well as business contacts he had developed in his role with PennWell.

When he decided to leave and start his own business, he downloaded the contact list from his laptop and took it with him, much to PennWell's annoyance. His contract of employment had stated that all documents used during employment belonged to the company and had to be returned before he left. In addition, PennWell had an e-mail policy in place which it sought to rely on.

PennWell applied for an injunction through the High Court for 'the return of confidential information' , but in response. Mr Isles argued that the list belonged to him because many of the contacts on it were personal and 80% had been made before he joined the company.

The good news.....

The view of the High Court was that where an address list is contained in Outlook or similar software that is part of the company's e-mail system and backed up by the company, the database or list belongs to the company.

The bad news.....

However, the High Court did say that the injunction would only apply to those contacts not known to Mr Isles before he started his employment. They made this concession because, in their view, PennWell had not adequately communicated the e-mail policy to Mr Isles.

So, what can you do to ensure your business information is safe when employees leave?

First, make sure that you have an adequate e-mail and internet policy in place and that it is communicated effectively to employees.

Secondly, if information such as contacts is important to your business, ensure that your contracts of employment make clear what information, including contacts information, is considered to belong to you as the employer and must be returned after employment ends.

Thirdly, think carefully about where you store that business card collection.....

If you would like any advice on restriction, confidentiality or non-competition clauses in contracts of employment, we'll be happy to help.

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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