Karen Adams, a tenancy support worker at People Potential Possibilities (P3), chose not to tell her work colleagues about her imminent milestone birthday. She only mentioned the date to her supervisor when asking for a performance review to be rearranged. On the day after, when her supervisor returned to work after sickness absence, she received a card and gift in accordance with normal practice at the workplace.
A week or so later, a colleague reached a milestone birthday. There was a celebratory lunch. Ms Adams chose not to go, and took a small degree of offence when she saw a circular email including the comment “shame everyone did not attend”. Shen then took a larger degree of offence at perceived “spiteful” conduct on the part of her supervisor towards a colleague, not believing that it could have been mere banter, and was asked to explain herself.
Ms Adams submitted a grievance. She alleged that this had been a disciplinary event, and that her disparate milestone birthday treatment had been sadistic, bullying, and race and/or age discrimination. Six days after the grievance was not upheld, she resigned and claimed direct race discrimination (not having sufficient qualifying service to claim unfair constructive dismissal).
The task of the tribunal was first to determine, under s.136 Equality Act, whether there was evidence from which it could conclude that discrimination had occurred: less favourable treatment, and something more to suggest the reason may have been race. If that test was satisfied, the burden of proof would switch to P3 to show that the treatment was in no sense whatsoever discriminatory.
Having initially acknowledged Ms Adams’ eloquent points about how discrimination could be unconscious and in the form of “micro aggressions”, the Employment Judge observed that a victim of such experiences could, rightly or wrongly, view subsequent events through a similar lens.
This led to the identification of an appropriate comparator:here, it was a white colleague not known to be celebrating a milestone birthday. Confidentiality and GDPR had served to prevent Ms Adams’ actual birth date becoming more widely known. She had received a gift and card in accordance with normal practice. Those factors proved fatal to her claim.
Over and above, the tribunal heard about how P3 and her supervisor had gone out of their way to help Ms Adams through her probation, and through issues with her conduct and performance. In the context of dismissing the second head of her claim, relating to the alleged spiteful conduct of her supervisor, the Employment Judge observed that it was difficult to comprehend how the supervisor could have come to be characterised as a “cruel, sadistic racist”.
Sometimes a case of this nature, which took up 4 days of tribunal time, raises the question of what lessons might be learned. On this occasion, P3 simply appears to have been vindicated in its decision to resist a specious claim. Ms Adams’ decision to keep her age private was illustrated further by the tribunal judgment referring to the date as her X0th. Might it be reasonable to conclude that this claim was an attempt to have one’s milestone birthday cake and eat it?
Are you facing a discrimination claim? Do you think it is specious, but need some help in handling it? Get in touch. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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