You have an independent contractor in your office doing some work for you. An employee of yours complains that this contractor made a racist comment. What should you do?
A recent case highlights that you should respond to the complaint in a reasonable way, otherwise the employee might bring a successful discrimination claim against your business. That probably should include investigating the event and taking steps to prevent the contractor from working in the same place as the complainant.
Direct race discrimination is defined as treating someone less favourably than you would treat another person because of their race.
In this case, the claimant identified 10 things that his employer should have done but didn't. Most importantly, he alleged that his employer should have requested that the contractor stop working for them. He also alleged that the senior manager who made the relevant decisions made race-based assumptions and that there was a culture of racism in the office.
The employer's primary defence was that the contracting company investigated the incident and decided to take no action against the contractor (who was their employee). The claimant's employer therefore claimed that its hands were tied and that nothing could be done. So the primary questions were – could something have been done and did the employer act unlawfully for not doing that?
The Employment Tribunal decided that the employer could have barred the offending individual from the business, and indeed would have done so had the complainant not been of a particular race. That means he was treated worse than a comparable employee of another race, so that was race discrimination. Also, though the tribunal didn't find that there was a culture of racism at the business, it did find that at times they paid only lip service to its declared zero tolerance policy towards racism.
Finally, it seemed that the business's policy was to investigate racism only if the victim made a formal grievance – that means it would never be proactive in policing the policy.
The Employment Tribunal awarded the employee almost £25,000 in compensation.
What this means for you
You should have a policy that addresses the various types of discrimination, and you must apply that policy effectively, to avoid discriminating against your staff.
How we can help
Our Employee handbook includes a 'Harassment policy' that refers also to discrimination by a third party. It also includes an 'Equal opportunities' section that says employees may complain of unlawful discrimination and doesn't specify that it must be by another employee.