NSL Ltd v P Zaluski
[2024] EAT 86
Vusi Mathebula v Time 4 U Limited
9 May 2024
[2024] EAT 89
Employment Appeal Tribunal
A worker claimed his boss called him and other Black colleagues "monkeys." The first court didn't properly investigate this, so a higher court sent it back for a new, fairer hearing. The new hearing will focus on whether calling someone "monkey" is racist and whether it's harassment.
Key Facts
- •The claimant, a Black African support worker, brought claims of direct race discrimination and other claims under the Equality Act 2010 against his employer.
- •A key allegation was the use of the word "monkey" or "monkeys" by his manager, Mr. Benn Ohurake, during a meeting on June 15, 2020, and in a WhatsApp group.
- •The employment tribunal dismissed the claims, but failed to make specific findings about the use of the word "monkey" at the June 15, 2020 meeting.
- •The claimant appealed the tribunal's decision.
- •The claimant was a litigant in person.
Legal Principles
Direct race discrimination under s.13 Equality Act 2010
Equality Act 2010
Harassment related to race under s.26 Equality Act 2010
Equality Act 2010
Less favourable treatment
Various case laws including Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065; Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337; Villalba v Merrill Lynch & Co Inc [2007] ICR 469; and CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439, [2015] ICR 1010 and Earl Shilton Town Council v Miller [2023] EAT 5
Burden of proof in discrimination cases under s.136 Equality Act 2010
Equality Act 2010
Adequate findings of primary fact and reasons for conclusions of secondary fact
Employment Tribunals Rules of Procedure 2013, rule 62
Requirement for tribunals to engage with specific complaints and make necessary findings
Jocic v London Borough of Hammersmith & Fulham [2007], UKEAT/0194/07 and Peart v Dickson’s Store Group Retail Ltd . UKEAT/0030/04
Considering whether a complaint should be treated as harassment or direct discrimination
Amendments to claims
Selkent and other authorities
Outcomes
The appeal was allowed.
The employment tribunal fundamentally failed to address and make necessary findings of fact about the specific complaint regarding the alleged remark at the meeting on June 15, 2020. The tribunal's reasoning was inadequate to properly dispose of the complaint. The tribunal also failed to consider whether the complaint should be treated as harassment.
Remission to a differently constituted tribunal.
The decision was so fundamentally flawed that remission should be to a differently constituted tribunal to consider the complaint about the June 15th meeting afresh, potentially considering it as harassment related to race, alternatively direct discrimination.