The Watford Employment Tribunal recently heard a case presented by Mr Perera against his former employer of Stonegate Pub Company Ltd (the Company) alleging that he had been discriminated against on the grounds of racial and religious harassment when he was dismissed from his employment.
Mr Perera was a kitchen assistant at the Company, during his employment around March 2020, he suffered a fall on a patch of oil in the kitchen. The fall prompted his managed Mr Badra to laugh at Mr Perera’s expense, leaving him red faced and embarrassed.
In October 2020, Mr Perera failed to provide the Company with his proof of right to work in the UK and as a result he was dismissed. The Company argues that this is the reason for his dismissal, not the incident that took place in March of that year.
Mr Perera’s argued that this was not the real reason for his dismissal. He was dismissed because of racial and religious harassment and that the incident when he fell proved this. Mr Perera stated that Mr Badra had deliberately placed oil on the floor, intending for Mr Perera to fall and when that happened, he laughed.
The Tribunals Decision
The Tribunal panel dismissed his claim and concluded that the laughter had nothing to do with Mr Perera’s race or religion. The Tribunal made the following comments:
Mr Perera has a tendency to jump to conclusions when he encounters misfortune.
Mr Perera’s allegation was undermined by his own evidence, which was to the effect that the location where he fell was one prone to spillages.
None of the treatment complained of had the proscribed purpose or effect…The conduct itself, objectively, came nowhere near having the proscribed effect and his view of matters was unreasonable.
Whilst Mr Perera failed in his claim against the Company for harassment, please note that his claims for unlawful deductions of wages and failure to provide written particulars of employment were successful. He was awarded £2,335.02 as a result.
What can we learn from this case?
Harassment:
The first thing to address is, what amounts to harassment?
Harassment is experienced by someone who experiences unwanted behaviour related to one or more of the nine protected characteristics (Race, Age, Disability, Religion or belief, sex, sexual orientation, gender reassignment, pregnancy or maternity leave and marriage or civil partnership).
To amount to harassment, the unwanted behaviour must either violate the person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the person.
The main points to take away as to why Mr Perera’s case did not succeed is as follows:
- Mr Perera undermined his own evidence.
- He failed to prove that the harassment he alleged to have suffered had the proscribed purpose or effect.
The decision reached by the Tribunal is one of common sense.
The case clearly illustrates the importance that is placed on establishing or disproving a connection between the relevant protected characteristic and the alleged harassing behaviour, as well as the effect the harassing behaviour caused.
Unlawful Deduction of Wages
Regardless of whether an employee is attempting to bring a claim against their employer, the employer does not have the right to withhold wages from an employee, unless it is has been agreed i.e. set out in the contract of employment or set out in a separate agreement.
Written Particulars of Employment:
An employer has the responsibility to provide employees and/or workers with their written particulars of employment i.e. this can be set out in written particulars or the contract. As of April 2020, written particulars must be provided ON or BEFORE the first day of employment.
If an employer fails to do this, then an employee can bring a claim against their employer for failure to provide written particulars of claim. Please note that this claim can only be brought alongside another claim such as unlawful deductions, discrimination, unfair dismissal etc.
Employers should be aware that a tribunal can award between 2 to 4 weeks’ pay to the employee if they have failed to provide written particulars to their employee.
If you have any questions, please do not hesitate to contact us.