#Employment : Racial Harassment? *WON*

[Luxxinterior]

Hi... can someone advise please?

 

I have just been made redundant, which I am appealing against, and up until now I have kept my mouth shut about the following for fear of repercussions, but now I think I need to act.

 

I am Irish, moved to UK 6 yrs ago, and have employed in the same IT job since I moved here. I was promoted to IT supervisor less than a year into my employment, then Manager, then unfortunately there were cutbacks and I had to take a demotion to Supervisor with less pay.

 

The new managers did not really like me very much, mainly because I didnt crawl up their (_)_) like everyone else, so I never received and career progression opportunities, training, or otherwise. I do not have any bad marks on my HR record, and have always applied myself 100%.

 

The new manager had formed a perfect clique amongst the team... they all met up after work for parties etc.... I was never invited (I am a family man, so my partying days are over) and I never really thought much of it.

 

Throughout my employment I have had to put up with comments on my nationality, and more and more often, I have been referred to by by nationality rather than my actual name. So for example, instead of someone saying "Hi John Doe", they would say "Hi Irish".

 

This was a regular occurence, to which I have witnesses.

 

I also am in posession of emails sent to me in work to the same effect.. I am referred to by nationality! Did I complain? ...no!

Given the alliance and clique situation, I did not feel I could approach my manager regarding this, and in fact, when i once requested time off for a family member visit, he asked "is Colin Farrell coming to stay?". So I did not feel I could raise the issue when he was one of the offenders.

 

Another email I saved was a link to a website which basically made out that the Irish were stupid!!!

 

None of this was very recent, but I know the the protection from harassment act allows 6yrs in order to act.

 

Question is, do I have a case if I were to pursue it? Can I do it myself? I spoke to a solicitor who suggested it could be costly, that was without hearing any of the facts.

 

Any advice would be gratefully received

 

Thanks in advance

[elpulpo]

I wouldn't flatly (that's not Michael Flatly, I'm not being funny) say no, but my first thought is that the fact that you didn't bring these issues up at the time would definately stand against you. Time scale is always a key issue with such things, and in the absence of evidence to the contrary I think it would seem like sour grapes.

What's pertinant is, do you think there's some aspect of unlawful racial discrimination to the fact that you've been selected for redundancy?

Usually, to make an application to ET, you'd have 3 months from the last act of discrimination. If you brought up insults that were a year old you'd be struggling.

[Luxxinterior]

I wouldn't flatly (that's not Michael Flatly, I'm not being funny) say no, but my first thought is that the fact that you didn't bring these issues up at the time would definately stand against you. Time scale is always a key issue with such things, and in the absence of evidence to the contrary I think it would seem like sour grapes.

What's pertinant is, do you think there's some aspect of unlawful racial discrimination to the fact that you've been selected for redundancy?

Usually, to make an application to ET, you'd have 3 months from the last act of discrimination. If you brought up insults that were a year old you'd be struggling.

 

Hi Elpulpo,

I am aware of the timescales in relation to an employment tribunal, that is why I have looked at the "protection from harassment act" through the regular courts.

The reasons behind not saying anything was basically I was afraid I would lose my job.. and being a father of four with a big mortgage I did not want to rock the boat.

 

I can never prove my redundancy was race related. But I do have in black and white and from witnesses that this behaviour occured. The question is...was it racial harassment regardless of intention?

[Luxxinterior]

Lets put it this way...

 

I have been constantly been referred to by my nationality.... but if I was from Pakistan for example, would they have referred to me by my nationality then? I think not!

Looking at the the protection from harassment act, it begins with this.....

 

1 Prohibition of harassment.

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3)Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

(a)that it was pursued for the purpose of preventing or detecting crime,

(b)that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

©that in the particular circumstances the pursuit of the course of conduct was reasonable

[honeybee13]

Hello there. Have you spoken to the EHRC helpline? They are supposed to be helpful and should be able to tell you if you can take this further.

 

If you are going to do something about this, you will need good evidence like the emails you mentioned. Bear in mind though that colleagues or ex-colleagues are often reluctant to give evidence because they want to keep their jobs. A witness statement isn't enough for a tribunal, they have attend if I remember rightly.

 

You could also see the CAB who may or may not advise, but they should have contacts with employment lawyers locally and be able to arrange a free or reasonable first meeting. Make sure you see a lawyer who specialises in employment and not selling houses, wills and probate etc.

 

I don't know if a local law centre would be able to help on this sort of thing, could be another option.

 

My best, HB

[elpulpo]

Lets put it this way...

 

I have been constantly been referred to by my nationality.... but if I was from Pakistan for example, would they have referred to me by my nationality then? I think not!

Looking at the the protection from harassment act, it begins with this.....

 

1 Prohibition of harassment.

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3)Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

(a)that it was pursued for the purpose of preventing or detecting crime,

(b)that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

©that in the particular circumstances the pursuit of the course of conduct was reasonable

Oh, I agree. I don't think how they conducted themselves towards you was at all acceptable. People don't apprieciate that it's Unlawful Discrimination to use such language.

I just have a concern as whether any legal action you may take would be successful, given the length of time since it might have occured.

I'm not saying categorically it won't, I just think that so an ET the sour grapes defence might be quite strong.

Give it a go. Fill out an ET1 and see what happens. If nothing else, RD cases such as yours would attract considerable publicity, it might well be the the R would settle rather than it hitting the papers.

[madari]

Hi Lux,

 

To issue proceedings under the `Protection from Harrasment act`[PHA] i suggest you google the leading case law of : Conn v Sunderland city council, Where the court of appeal held in favour of the Council by stating:

 

`In determining whether harassment had occured to incur civil liability under the PHA,the test was to ask whether the gravity of the misconduct was such as would sustain criminal liability under section 1 of the act.`

 

I personally dont think that being called by an inappropriate name falls under the above catagory.

 

Good luck anyway.....

[helencb]

I dont think you have much of a case here. If you didn't like being referred to as "Irish" then you have only got to tell your colleagues. Most of us get some nicknames from time to time, and yes people should think more, no question, but a lot of time has elapsed now. There doesnt seem to be anything in what you say that you were the one who was made redundant because you are Irish

[Luxxinterior]

I would like to bring this to tribunal on the grounds of unfair dismissal due to the scoring of the matrix being unfair, and I would like to use the racial element too, but only in the sense that there was a culture within the department to which I had witnesses.

 

I lost my appeal (strangely enough) but my actual appeal doc is well set out and gets my points across very well (I will post later). The focus of it is on the scoring matrix and the relationship with my Line Manager.

 

Is it possible to do this on my own?

[papasmurf1cx]

Discrimination can be viewed as an act of continuing discrimination, so historical incidents are relevant to the setting the scene so to speak. As was previously pointed out the acts of discrimination must have been the cause of the redundancy ie you lost out because of it. Personally if you were to go it alone I would fling it in for good measure. If you were to do it still put in a grievance though even after the event.

 

Are you insured against employment disputes? Look on your home contents insurance, they normally are found there.

[Luxxinterior]

Discrimination can be viewed as an act of continuing discrimination, so historical incidents are relevant to the setting the scene so to speak. As was previously pointed out the acts of discrimination must have been the cause of the redundancy ie you lost out because of it. Personally if you were to go it alone I would fling it in for good measure. If you were to do it still put in a grievance though even after the event.

 

Are you insured against employment disputes? Look on your home contents insurance, they normally are found there.

 

Hi Papasmurf - This is harassment, not discrimination. I did not lose my job because I am Irish, I know that. But the harassment, led to a distinct lack of respect, and the culture was accepted as normal in there, resulting in low sef esteem, lack of confidence etc, which IMO led to me performing less than adequate during my interview, especially considering the interviewer was one of the people always making fun, associating me with terrorism etc.

 

But the bulk of my argument would be the scoring matrix... for instance, a question which was two fold, in which we both technically scored 50% each, the other candidate was still awarded 100% anyway!!

 

Of course the only other candidate was the interviewers "best buddy"

 

Regarding bringing this to tribunal, are there like "Particulars Of Claim" that need to be filled out, and if there is, how would I word them?

 

Also, does anyone know what the cost of doing this would be? I am not covered under my home insurance, but I may be entitled to legal aid as I am the dole now. (Not for long hopefully!!)

[papasmurf1cx]

Hi Luxx have a look at http://www.legislation.gov.uk/ukpga/2010/15/contents in particular sections 9,13, 19 & 26. Do you not think they may apply?

[Luxxinterior]

Hi, Can anyone tell me what happens if i cannot remember specific dates regarding harassment?

All I know it was pretty much constant and sometimes a daily occurence, but in filling out my claim form it asks for specific dates.

 

Can i just say something like "unkown dates between 2007 - 2011"???

[papasmurf1cx]

how about "almost daily between 2007 - 2011"

[RachelMD]

Be as specific as ya can be, without making something up that's not true.

Otherwise, ya might say 30/03/09, then they show up with evidence that you were off on yer jollies on that date. Then ya look like Jeffrey Archer.

[Luxxinterior]

excellent, thanks, I wasnt sure if I could be that vague

[RachelMD]

Well, it's not ideal. But not lying really is a golden rule.

[Luxxinterior]

Claim submitted and accepted... they have 28 days from last Tuesday to respond

Do they automatically accept a claim? ....or do they have to believe there is a case first?

[RachelMD]

Well, the respondant will state on the ET3 their response, ranging from a complete concession to a complete challenge.

 

The Employment Judge will then consider both sides submissions and decide how the case should proceed.

[Mark&Janice]

"A complaint about race discrimination in employment must be brought to an Employment Tribunal within three months of the act or failure to act being complained of. A complaint about race discrimination under Part III of the RRA (goods, facilities and services, public functions etc.) must be brought to a County Court or Sheriff’s Court, within six months of the act complained of"

[stuart_coogh]

not to worry with the old dates on your grievance even though they may be years old, because this is continued harrassament and discrimnation that is still on going and the old dates even though expired past the 12 week limit for an ET show that harrassament and discrimnation is still ongoing, you have to go int very very very hard, basically its all out war now so you have to make your employers and the employess who messed around with you make their life hell and get them sacked, take the company to an ET and get in touch with your local paper, your employer will start bricking themselves when they realise you have spoken to the local paper and may well offer you a pay off, take that if you wish but still take them to an ET for racial discrimination and if the companies lawyers ask you have no witnesses - tell them these things were said only to you so no others could hear

[Marieleeza]

Claim submitted and accepted... they have 28 days from last Tuesday to respond

Do they automatically accept a claim? ....or do they have to believe there is a case first?

I get the impression that it is rare for this type of claim to be denied.

 

They usually give the claimant a chance to argue their case at a Pre Hearing.

 

I think they realise that the ET1, in more complex cases, like racial harassment/discrimination, is just an outline and not a true measure of the merits of the case.

[Marieleeza]

I dont think you have much of a case here. If you didn't like being referred to as "Irish" then you have only got to tell your colleagues. Most of us get some nicknames from time to time, and yes people should think more, no question, but a lot of time has elapsed now. There doesnt seem to be anything in what you say that you were the one who was made redundant because you are Irish

I disagree. If a worker was called Paki they would have an immediate case for harassment. They would not be required to accept it as a nickname.

[stuart_coogh]

take them to an ET full stop and go in very hard

[Par King]

Please can you confirm, when you were dismissed and the last date of harassment.

 

I think because you have not specified the dates, the ET might ask you to be more specific, if not you need to be aware that you may be pushed to try and remember the dates as best as you can even if it is approximate eg Feb 2010. You need to show that you have suffered harassment on the ground of your race, ie you being Irish. However, ideally you want to show that the harassment happened before and after October 2010, that is was continuing act of discrimination. The reason why I suggest its important to look at the dates, is that you need to try and get your claim under the Equality Act 2010 as opposed to under the old Race Relations Act. The latter is very complicated because of legal complex issues like the burden of proof. If your case is under Race Relations Act, if you argue that you were harassed because of nationality its a harder case to run and win than if you argue its because of your national origin under the RRA. In October 2010, the Equality Act got rid of this hurdle about burden of proofs. However under transitional arrangement people like yourself may rely on the Equality Act if they can show that the harassment was before, after and the last act ended after Oct 2010.

 

As such, it may be that the ET ask you to particularise your claim, that give dates, precisely because they are trying to see which Act your claim falls under RRA or EA. For a harassment claim under the Equality Act you should show

1 that your employer engage in unwanted conduct related to a relevant characteristic ( which from what I understand is race)

2. That the conduct had the purpose or effect of violating your dignity or creating an intimidating hostile, degrading humiliating or degrading environment for you

( where you are focusing on the effect of the harassment as I explained in point 2, the ET will look at your perception, other circumstances and whether or not it was reasonable for the conduct to have that effect

 

Also just in case you have argued discrimination, you again want to say for the same reasons the discrimination was continuing and happened up until you were dismissed in 2011.

 

By the way, did you raise a grievance on your unfair dismissal/race harassment claim?, if you didn't if you are successful at ET the Et has the power if they want to to reduce your compensation on the basis you didn't follow the ACAS guidance on disciplinary and grievances, which suggest raising a grievance with your employer in the first instance.

 

 

 

My reply does not constitute legal advice, they are just my views on the limited information provided and you should seek legal advice on all legal issues you face