The Equality Commission for Northern Ireland recently secured another successful discrimination claim after Damian Anysz, a chef from Poland, brought a claim against Sizzlers NI Ltd on the basis of race discrimination and harassment in the workplace.
Mr Anysz had worked as a commis chef in Sizzlers Restaurant of Magherafelt since November 2016, but endured ongoing racial harassment and victimisation from a colleague between May 2017 and July 2018.
The industrial tribunal heard of the repeated verbal abuse that he received from fellow employee June Fullerton, as well as the lack of appropriate action from the company’s management team after Mr Anysz had made complaints.
The tribunal heard submissions that company director Kate Clarke not only failed to believe Mr Anysz until another staff member confirmed the incidents of harassment months later, but that she failed to take appropriate action against Ms Fullerton.
The tribunal unanimously concluded that Mr Anysz had been treated less favourably on racial grounds and was a victim of harassment. He received an award of £14,000 for injury to feelings, with a further £1,204 due to the respondents’ failure to provide a statement of the terms and conditions of his employment.
While it is a positive victory in the interests of workplace equality, the case also serves as a caution to Northern Ireland employers where complaints of discrimination are raised by employees.
Under discrimination legislation, an employer is held vicariously liable for the actions of its employees where carried out in the course of employment. In this case, the discriminatory acts of Ms Fullerton were treated as having been carried out by the respondent employers. Moreover, the tribunal was not persuaded that the respondents had taken such steps as were reasonably practicable to prevent the discriminatory conduct.
Despite the disciplinary investigation that was held against Ms Fullerton, the tribunal concluded that the respondents’ actions were insufficient; not only had Ms Clarke neglected to take action until months after Mr Anysz’ complaint, she failed to communicate with Mr Anysz about the disciplinary action taken against Ms Fullerton who was invited back to the workplace in a conciliatory manner.
The tribunal found that the respondents “permitted and compounded” the harassment experienced by Mr Anysz through their inadequate approach, which appeared to favour the harasser instead of the victim. It was satisfied that this failure of the respondents was not an omission, but rather part of a deliberate course of action which allowed the racial discrimination of Mr Anysz to continue.
Whilst the tribunal recognised that Ms Fullerton’s conduct did not reflect the views of the respondent employers, it did not accept the respondents’ lack of experience in dealing with such matters as a legitimate excuse for their negligent approach.
The tribunal has demonstrated its willingness to enforce high penalties against employers who have negligently responded to workplace discrimination. Employers will need to take clear affirmative action in order to satisfy the tribunal in future.
This judgment therefore places a greater onus on employers, not only to promote principles of respect and tolerance in the workplace, but to implement proper, comprehensive procedures to address discrimination and harassment complaints and safeguard employees.
Northern Ireland employers ought to review their policies in the wake of this judgment to ensure that their approach to discrimination and harassment is fair, robust and thorough.
:: Seamus McGranaghan (seamus.mcgranaghan@oreillystewart.com / 02890 321 000) is director of commercial at O’Reilly Stewart Solicitors.
