Miss J Begum v The London Borough of Tower Hamlets: 3200598/2023
JUDGMENT
[1]The complaint of “Around October 2022, Pat Chen stating to the Claimant during a Teams meeting that “because you’re Asian and you know all the Asians, can you tell me if you know this person?”, whilst trying to identify an Asian employee” was not presented within the applicable time limit, but the Tribunal have found that this was conduct extending over a period of time and the claim was issued in time. This complaint will therefore proceed.[2]The complaint of direct race discrimination is not well-founded and is dismissed.[3]The complaint of harassment related to race are well-founded and succeed.REASONS
[1]The Full Merits Hearing was heard on 21 – 24 January 2025 inclusive. Due to time constraints the Tribunal were unable to give Judgment for remedy during the time and the Judgment for remedy was reserved. The Tribunal remained behind to deliberate on 24 January 2025. The full merits gave the following Judgment:[1]The complaint of “Around October 2022, Pat Chen stating to the Claimant during a Teams meeting that “because you’re Asian and you know all the Asians, can you tell me if you know this person?”, whilst trying to identify an Asian employee” was not presented within the applicable time limit, but the Tribunal have found that this was conduct extending over a period of time and the claim was issued in time. This complaint will therefore proceed.[2]The complaint of direct race discrimination is not well-founded and is dismissed.[3]The complaint of harassment related to race are well-founded and succeed. Findings of fact 3. The tribunal has found in the claimant’s favour in that there were 3 occasions where it has been found that she has suffered harassment related to race.Findings of fact
[4]The harassment was conducted by the same individual, being Ms Pat Chen who was Head of HR on a Teams call, during a team meeting and at a meeting later that afternoon. Ms Chen was no longer an employee of the respondent at the date of the hearing but did appear to give evidence in person.[5]The harassment occurred on 3 occasions and related to race. Ms Chen apologised for her conduct and had been required to retake her equality and diversity training. The allegations were: Case Number: 3200598/2023 3Findings of fact
[1]Around October 2022, Pat Chen stating to the Claimant during a Teams meeting that “because you’re Asian and you know all the Asians, can you tell me if you know this person?”, whilst trying to identify an Asian employee; (“Teams Incident”)[2]On 2 November 2022, Pat Chen stating to the Claimant during the ER team meeting that the Mayor of the London Borough of Tower Hamlets (‘the Mayor’) “would talk to you because of your heritage”; (“ER Meeting Incident”)[3]On 2 November 2022, Pat Chen stating to the Claimant during the ER team meeting that “you are the same […] he’ll talk to you”, in reference to the Claimant’s and the Mayor’s race; (“ER Meeting Incident”)[4]On 2 November 2022 in relation to [2.2.2] above, Pat Chen saying to the Claimant that the reason she made the comment was “because of the community”; (“the Afternoon Meeting”)[5]On 2 November 2022, Pat Chen stating that “I’m just stating facts […] it’s a fact he won’t talk to me, but he would talk to you” in relation to the Mayor speaking with the Claimant on account of the Claimant’s race? (“the Afternoon Meeting”)[6]On 2 November 2022 during the ER team meeting, Pat Chen pointing at all of the white members of staff in turn and saying that the Mayor would not talk to any of them, and pointing at a black member of staff and saying that the Mayor would “maybe” talk to them. (“ER Team Meeting Incident”) 6. Allegations 1 – 5 were pleaded as direct discrimination and / or harassment related to race. Allegation 6 was harassment related to race only.[7]Allegation 1 was asserted to be out of time. The Tribunal held that this conduct was conduct extending over a period and that this conduct had occurred, at the earliest, on 15 September 2022.[8]The Tribunal upheld harassment related to race for all 6 allegations and consequently dismissed the alternative direct discrimination claims.[9]The Tribunal found that the claimant had been deeply distressed by Ms Chen’s conduct and that this had lasted many months. It was also her position that directors had been avoiding her.[10]Both the grievance and the grievance appeal were found to be fundamentally flawed as they did not deal with all of the complaints made including those related to race. However, these did not form part of the allegations pleaded.[11]The grievance was against a senior manager, being the Head of HR and the grievance was heard by her immediate manager. We find that in the circumstances that this relationship was too close. We also find that this was the case for the grievance appeal. Case Number: 3200598/2023 4[12]The grievance appeal required Ms Chen to provide the claimant with a written apology. Ms Chen never wrote this and so the claimant has never received a written apology. The injury[13]The claimant was deeply distressed immediately following Ms Chen’s actions towards her. Whilst she showed some resilience following the Teams Incident, we have found that the actions by Ms Chen in the ER Teams Meeting Incident compounded her injury. This was further compounded by Ms Chen’s conduct in the Afternoon Meeting. We find that this did significantly impact the claimant’s confident and continued to impact on her for at least a year of her employment.[14]Ms Chen did apologise to the claimant and to the entire ER Team for her conduct, but did not put her apology into writing as required to do so by the Grievance Appeals manager.[15]The claimant did not take any time off work, nor was the Tribunal shown any medical evidence to demonstrate the extent of her injury.The Law
[16]We are obliged to consider injury to feelings as we have upheld a complaint of harassment related to race.[17]We are mindful that the award is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment they have received. It is compensatory, not punitive.[18]The general principles that apply to assess an appropriate injury award are set out by the EAT in Prison Service v Johnson [1997]IRLR 162 para 27.[19]We have considered the actual injury suffered by the claimant and have arrived at what we consider is a just award to her.[20]We have endeavoured to determine an award that is not too low nor too high, i.e. to strike a balance.[21]We have considered relevant cases, with the awards being uplifted to give figures that are relevant today.[22]Whilst the harassment was not a one-off occurrence, it was isolated and did not reoccur following Ms Chen’s apology to the claimant in the Afternoon Meeting.[23]We have considered the case of Salter v Imperial College Healthcare NHS Trust UKEAT/0122/14 (15 June 2015, unreported) and find that it is fair, just and reasonable to award compensation at the upper end of the lower Vento band.[24]Reg 6(1)(a) of the Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 provides that the period over which interest accrues begins with the date of the discrimination and ends on the date the tribunal calculates compensation. We find that this period is 15 September 2022 to 27 January 2025, which is a period of 866 days.[25]Interest is calculated as simple interest accruing from day to day (Reg3(1)) at an interest rate of 8%. Case Number: 3200598/2023 5Conclusion
[26]We have found that the relationship between the managers during the grievance was not sufficiently independent. We also found that the claimant did not receive the answers to all of her complaints or the written apology as expected. We have made recommendations to address this.[27]Turning to compensation; there are 2 key dates and the issues arising in the Teams Incident and the conduct of Ms Chen on 2 November 2022. This was not a one-off incident, but it was limited to specific events on 2 days. The distress to the claimant was immediate and significant and affected the claimant and her confidence severely and continued to impact her. The claimant also perceived that her relationship with Ms Chen and other senior managers was impacted and that this affected her integrity and professionalism.[28]We find that an award at the top of the bottom band of the Vento is appropriate.[29]The claimant issued her claim in 2023 and the relevant Vento band is £990 - £9,900. We find that an award of the sum of £8000 is just and equitable in all of the circumstances.[30]The claimant has not suffered any financial loss.[31]We find that interest should be awarded at the daily rate of 8%. The daily rate for interest on a sum of £8,000 is as follows: 866 x 0.08 x 1/365 x 8,000 = £1,518.46