Brazilian Bartender Wins Claim Following Offensive Comments and Racial Harassment at Work

In Miss Ana Machado v Swansea Audio Limited t/a Coyote Ugly, a Brazilian bartender has won her racial harassment at work claim after being accused of stealing money to send back to her family before facing dismissal.

In our latest article, we examine the case facts before discussing the employment tribunal’s judgment. We then explore workplace racial discrimination in more detail to ensure the associated employment rights are fully understood.

If you’ve faced discrimination of race in the workplace and believe your rights have been breached, contact us now. Redmans Solicitors are employment experts and are here to help. Following a brief consultation, we can analyse your circumstances, answer any queries you may have and provide expert advice.

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The Facts in Miss Ana Machado v Swansea Audio Limited t/a Coyote Ugly

Background to Racial Harassment at Work

Miss Ana Machado (“the Claimant”) began working as a bartender for Swansea Audio Limited t/a Coyote Ugly (“the Respondent”) on 4 December 2021. She is a Brazilian national and currently has the right to remain in the UK through her daughter, who is a UK citizen.

Issues first arose after a new bartender joined the Respondent on 3 October 2022. A month later, the new bartender admitted to remarking that the Claimant (and another colleague) shouldn’t make customer announcements over the microphone, “because you can’t understand them.” She further clarified that this was due to their voices being “quite muffled and hard to understand”, and not due to nationality. The Claimant disputed this, however, maintaining that the comment was directed at her nationality and level of English proficiency.

Feeling disgruntled by the incident, the Claimant raised the matter with her manager on 11 November. This gave rise to further disputes, though, over whether she’d made a complaint of discrimination.

Nonetheless, on 31 December, the Claimant was questioned about CCTV footage from 22 December. The footage allegedly showed the Claimant failing to take full payment for some drinks orders and placing part of a cash payment into her own tip jar.

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The Respondent asserted that, at the end of the meeting, the Claimant was suspended but ran off before a letter confirming this could be provided. However, the Claimant rejected this, stating that she’d been dismissed for gross misconduct. Notably, the footage was later deemed “inconclusive” by the tribunal.

During proceedings, the Claimant alleged that it had been implied she was “more likely to steal as she was sending money to her family in Brazil.” She also noted that she had worked without issue for 13 months but faced dismissal shortly after raising her complaint.

Following the incident on 31 December, the Claimant submitted an appeal regarding her alleged dismissal/grievance, claiming discrimination. This appeal was lodged on 7 January 2023, but was ultimately unsuccessful.

The Claimant subsequently initiated employment tribunal proceedings, claiming harassment, victimisation and discrimination.

The Employment Tribunal’s Judgment

In its decision, the tribunal first addressed the date of termination. The Respondent maintained that the Claimant hadn’t been dismissed on 31 December but had instead been suspended. However, as no suspension letter, dismissal letter, appeal outcome letter, or grievance outcome letter had been provided, the tribunal ruled that “on the balance of probabilities the claimant was dismissed on 31 December 2022.”

The tribunal then turned to the allegation of racial harassment at work. This centred on the comment that the Claimant shouldn’t use the microphone because customers couldn’t understand her. Although there was a dispute as to whether the remark referred to mumbling or to her accent, the tribunal concluded that it was “related to the Claimant’s accent and thereby her nationality.” It found that the comment constituted unwanted conduct which created an offensive environment and amounted to harassment.

The tribunal further determined that the comment suggesting the Claimant was more likely to steal in order to send money to her family in Brazil had indeed been made. It held that this assumption influenced the decision to dismiss, and because it concerned her nationality, it also amounted to harassment.

Accordingly, the harassment claim was upheld. While all other claims were dismissed, the tribunal will now determine the appropriate remedy to be awarded to the Claimant.

What is Racial Harassment in the UK?

Race discrimination in the workplace can arise in several ways, including direct discrimination, indirect discrimination, harassment and victimisation. In the case above, racial harassment at work was a central issue.

Under the Equality Act 2010, harassment occurs where someone is subjected to unwanted conduct related to a protected characteristic, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading or humiliating environment.

Race is one such protected characteristic, covering colour, nationality, ethnic origin, and national origin. Importantly, harassment doesn’t need to be repeated or ongoing; a single incident can be sufficient. Moreover, even if there was no intent to offend, if the conduct has the effect described, harassment may still have occurred.

What are Some Examples of Racial Harassment at Work?

Harassment is an example of racial discrimination and, in practice, can include:

• Derogatory comments about someone’s nationality, ethnicity or accent
• Suggestions that a person is more likely to engage in misconduct because of their racial or ethnic origin
• Remarks mocking someone’s name, language or way of speaking

Read More: Navigating Cultural Conversations: Insights from Sushi-Related Race Discrimination Case

This list isn’t exhaustive, though, and such behaviour can take many other forms. If a matter proceeds to a tribunal, it would assess whether the conduct was unwanted, related to race, and had the purpose or effect described above. Where those criteria are met, the conduct would likely be classed as harassment.

Faced Racial Harassment at Work? We Can Help

If you’ve experienced any form of racial discrimination at the workplace, contact Redmans Solicitors today. Our team of employment specialists are here to help, and following a brief consultation, we can provide expert advice.

It only takes a moment to discover how we can assist you, simply:

• Phone 020 3397 3603
• Complete our online form to request a callback