Car dealership loses discrimination claim after dismissing workplace ‘banter’

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A car dealership has lost claims for direct racial discrimination and victimisation at Birmingham employment tribunal. Racist language was used against an employee and the firm dismissed it as “banter”.

Mr. L Bali, began working for car dealership, Listers Group in 2011 as a sales executive at its Audi showroom in Coventry.

In 2016 Bali, who identifies as Asian, brought his two young children to the showroom after his childcare plans fell through. On the same day, an important customer was present in the showroom and complained about Bali’s children. Ever since the complaint, the sales executive believes his co-workers attitude changed towards him.

Bali claimed his colleagues made racial jokes, gestures and accents towards him. One colleague referred to Bali as The Simpsons character ‘Apu’ and others made offensive remarks such as “a ma chaud” and “a pane chaud” which translate to “motherfucker” and “sister fucker” in Urdu and Hindi. These racist and bullying comments had been dismissed as “banter” by his colleagues. When Bali sought for help, he was told he was being annoying, leaving him in a vulnerable state.

On 28th January 2017, Bali was signed off as unfit for work. On the same day, he submitted a grievance letter alleging bullying and harassment, sex and race discrimination, breaches of health and safety, and a failure to make reasonable adjustments. Bali didn’t return to work before his employment had been terminated.

According to Bali, the claims his colleagues made towards him included racial jokes, gestures and accents. One colleague has referred to Bali as The Simpsons character ‘Apu’ and others made offensive remarks such as “a ma chaud” and “a pane chaud” which translate to “motherfucker” and “sister fucker” in Urdu and Hindi. These racist and bullying comments had been dismissed as “banter” by his colleagues. When Bali sought for help, he was told he was being annoying, leaving him in a vulnerable state.

Head of HR at Listers Group, Phillip Graddon, processed Bali’s grievance. During the process, Bali attempted to raise new allegations. Graddon didn’t ask Bali about the allegations of the racial comments made against him. Instead, the process focused on less severe allegations which is surprising due to Graddon admitting to the tribunal the “chaud” comments were highly offensive.

Investigations took place after the grievance process by Tim Bradshaw, Listers Group operations director. The allegation in regards to the “chaud” comment was once again rejected even though another colleague admitted to hearing the phrases being made towards Bali.

Suggestions were made by Bradshaw that Bali had been complicit in the situation. The only evidence to support this was from an employee who was dismissed for gross misconduct over the comments made against the sales executive. Bali’s grievance appeal continued to dismiss the remarks as ‘banter’.

Bali made 13 allegations of less favourable treatment at the tribunal. The claims Bali made were victimisation, harassment in regards to his race, constructive unfair dismissal and he claimed he’d been refused opportunities because of his race.

At tribunal, Listers Group maintained the comments were not racially motivated and were no different from any other form of banter in the workplace. Employment judge Broughton stated Listers Group displayed “almost willful blindness”.

The judgment read: “It seems to us that if individuals swear in a particular language that can only be understood by those of a particular race and those individuals take offence, then that must be less favourable treatment because of race. It is targeted in terms of the audience, whether consciously or not”.

Brought believed Bali was a highly unreliable witness as he “exaggerated and embellished” the allegations and “the alleged effect that they had on him”. For example, Bali didn’t include in his original allegation he was called “Apu” and there were no witnesses to support this claim.

The tribunal agreed the only possible award that could be given to Bali was injury for feelings, and that any successful claims should be considered in the context of Bali’s exaggerations. A provisional remedy has been scheduled in case the two parties cannot come to an agreement on their own.

Banter isn’t a reason or excuse for litigation. Its important employers clearly identify what is and isn’t classed as ‘workplace banter’ to their employees. Employers should also inform their employees of the consequences of ‘workplace banter’ taken too far. This will help employers to avoid similar situations from occurring in the future.

This case also highlights the importance of carrying out thorough investigations. Phillip Graddon failed to discuss the racist allegations made against Bali during the grievance process. Instead, he focused on the less severe allegations.

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