Walters v. Avanta Enterprise Ltd, Court of Appeal - United Kingdom Employment Appeal Tribunal, December 21, 2017,  UKEAT 0127_17_2112
|Resolution Date:||December 21, 2017|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Walters v. Avanta Enterprise Ltd|
Appeal No. UKEAT/0127/17/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 10 October 2017
Judgment handed down on 21 December 2017
THE HONOURABLE MRS JUSTICE SLADE DBE
MS C WALTERS APPELLANT
AVANTA ENTERPRISE LTD RESPONDENT
Transcript of Proceedings
RACE DISCRIMINATION - Direct
PRACTICE AND PROCEDURE - Striking-out/dismissal
The basis of the Claimant's claim of race discrimination, properly understood, was that the attitude of a manager who had described her, an Afro-Caribbean, as a coconut or Bounty Bar, caused her to treat the Claimant differently from an employee who behaved stereotypically consistently with their race or ethnic origin. The Employment Judge erred in not considering that it was arguable that an Employment Tribunal should consider how a hypothetical white comparator would be treated in the circumstances and that on the basis of allegations in the ET1 it could not be said that the claim of race discrimination should be struck out as having no reasonable prospect of success. Anyanwu v South Bank Students' Union  IRLR 305 considered.
The victimisation claim was rightly struck out as having no reasonable prospect of success.
THE HONOURABLE MRS JUSTICE SLADE DBE
Ms C Walters (``the Claimant'') appeals from the Decision of an Employment Tribunal, Employment Judge Wade sitting alone (``the EJ''), sent to the parties on 31 March 2015 (``the Judgment''). The EJ struck out all the Claimant's claims - these were of disability discrimination, direct race discrimination, harassment and victimisation - as having no reasonable prospect of success. Following a Rule 3(10) Hearing before Mrs Justice Laing DBE, the Claimant's appeal from the striking out of her claims for direct race discrimination and victimisation (race) were permitted to proceed to a Full Hearing on revised grounds of appeal.
The Respondent is a welfare to work and training provider in four main geographical regions. The Claimant, who is black Caribbean, was employed as a job coach in their Westminster branch from 21 May 2013 until her resignation on 6 June 2014, which she alleges was a constructive dismissal. Ms Choudhury, a Bengali, was her manager.
The EJ recorded that in paragraph 14 of the Claimant's claim she stated that in December 2013 Ms Choudhury threw some chocolates at her team:
``She jokingly suggested that she had chosen the chocolates for everyone's personalities and threw the Claimant a Bounty and exclaimed ``I wasn't trying to say you're a coconut!!'' The Claimant advised that they did not take this meaning as they did not see themselves as a ``coconut'' but rather as exotic due to their Caribbean heritage but they continued and two members of the team actually asked what a coconut was as they did not get the reference - The manager then went on to explain the racial slur and stressed again that she did not think the Claimant was a coconut.''
This made the Claimant feel uncomfortable.
The EJ observed at paragraph 9:
``... The reference to bounty/coconut is a slur used against a black person who is perceived to be behaving like a white person (black on the outside and white on the inside). The insult is towards a black person who is effectively [being] accused of being a collaborator; it's [sic] not a slur about the colour of their skin.''
In March 2014 a period of absence management of the Claimant began. The Claimant had been off sick for ten days from 16 September 2013.
On 1 April 2014 the Claimant started a period of thirteen days sick leave.
The Respondent placed the Claimant on a performance improvement plan (``PIP'') in April 2014. The EJ recorded at paragraph 17 that this was triggered by the Claimant not hitting her key performance indicators. The EJ noted:
``... The Claimant criticizes the process and says that her manager Ms Choudhury was attempting to put all people who she believed to be coconuts at a disadvantage. The PIP had not progressed at the point the Claimant resigned.''
The EJ recorded at paragraph 16:
``There was one further unexplained absence on 27 May and on 28 May the Claimant resigned. ... there was no formal sanction under disciplinary or capability procedure against her, just a verbal warning.''
The EJ outlined the claim of victimisation in paragraph 18:
``... The Claimant raised a grievance after she had resigned and this is treated as the protected act for the purposes of a victimisation complaint. It is important to note that no reference to the disability discrimination is recorded and the only reference to race discrimination is the complaint about the incident in December 2013.''
The Decision of the Employment Judge
The EJ set out in paragraph 22 a reason for holding that the complaint of direct race discrimination had no reasonable prospect of success. It was because ``there is no white comparator and it is not easy to see how this could be race discrimination''. The EJ held:
``... Whilst it is true that if the Claimant had not been black Ms Choudhury would probably not have had the discussing bounty/coconut with her but there is a chasm of time between the December 2013 conversation and the implementation of the PIP. Anyway, even the Claimant does not say the PIP was instituted because she is black; ...''
The EJ held at paragraph 23 that:
``... apart from the Claimant's after-the-event umbrage at the ``coconut'' conversation she made no reference to race discrimination in the ET1 or the grievance, perhaps because she did not consider the December 2013 conversation to be race discriminatory at the time. When reading the particulars of claim as a whole the allusion to race discrimination is very light.''
The EJ reasoned in paragraph 24 that the Claimant agreed that she did not reach her targets:
``... Why therefore look for an ulterior motive on the part of Ms Choudhury and why would a Tribunal conclude that there was evidence which could lead the Tribunal to infer that there had been race discrimination?''
The EJ noted in paragraph 31 that the victimisation...
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