A recent news article (link) brings to a light a rather different case of discrimination and unfair dismissal. A law student has won compensation for unfair dismissal and discrimination after he was ostracised when a new manager arrived at his workplace.

David O’Neill commenced employment at the Ocean Dragon restaurant – a restaurant specialising in Chinese food – in May 2010. However, in October 2010 the management at the restaurant was shaken up and a new manager was brought in. This manager was of Chinese nationality. Soon after the new manager’s arrival Mr O’Neill’s shifts were cut from 25 hours a week to 6 hours a week. Eventually he found he was receiving no shift allocations a week at all. The signs in the restaurant’s staff areas were also changed to Chinese, which further ostracised Mr O’Neill. He questioned the reduction in his hours but was told that there was no work available. However, he later found out that another waiter (of Chinese nationality or ethnic origin) was working over 60 hours a week.

After a period of time dealing with this situation (presumably until after May 2011) Mr O’Neill became fed up and (it is assumed on the facts) resigned. He subsequently submitted a claim for (constructive) unfair dismissal and discrimination (presumably direct discrimination), representing himself through the Employment Tribunal. He was successful in his claims and was awarded £5,322.89 in compensation for unfair dismissal and discrimination (among other claims). This included £2,000.00 for injury to his feelings (compensation for discrimination).

As stated above, this case is rather different from most reported cases. The conventional race discrimination claim that is submitted to Direct 2 Lawyers normally involves discrimination against ethnic or national minorities. However, this claim involves the discrimination against a white British worker by an ethnic minority group. Although ‘unusual’ it is a perfectly legitimate claim. Under the Equality Act 2010 employers (and vicariously their employees) are prohibited from treating an employee less favourably than other employees because of their protected characteristic (their race, ethnicity, disability, age etc.). The comparator can either be actual or hypothetical. Mr O’Neill could point in this case at an actual comparator – the Chinese waiter who was working 60 hours a week. He could clearly show (which is an obvious point as he was successful) that he was being treated less favourably than this worker in having his hours reduced. He was therefore able to prove on the balance of probabilities that he was being directly discriminated against by his previous employer. There is no defence available to a successful claim of direct discrimination unless such treatment is on the protected ground of a worker’s age (and the defences available are limited even then).

What does this claim demonstrate for employers and employees?

Employers

  • Treat your staff equally, regardless of your workers’ characteristics
  • Try and keep on top of the relationships at your workplace to prevent any fallings out because of discriminatory treatment. Prevention is better than cure
  • If there are problems then sit down with the workers concerned and discuss the issues. Again, prevention is better than the cure, especially when tea and biscuits is involved
  • If you can’t resolve these problems then get legal advice as you may be exposing yourself to claims for unfair dismissal and discrimination

Employees

  • Even if your case doesn’t fit into the ‘usual’ types of discrimination, consider whether you’re being discriminated against if you’re being treated less favourably than other employees. The important thing to note is that the treatment you’re receiving must be because of your protected characteristic (i.e. you’re being subjected to hurtful remarks because of your skin colour or because you possess a disability).

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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