Smile Publications Successfully Defends Race Discrimination Claim

In Gifty Robinson v Smile Publications Ltd, the Employment Tribunal held that questions about an employee’s name, hair, and eating habits were not racial discrimination. Consequently, the discrimination claim against Smile Publications failed.

In this article, we consider the facts of the case and consider the tribunal’s comments on the actions in question.

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The Facts of Gifty Robinson v Smile Publications Ltd

Gifty Robinson (the claimant) commenced employment with Smile Publications Ltd (the respondent) on 3 October 2022. She was employed as a telephone salesperson and her role was to sell advertising space in a magazine published by the respondent.

The claimant is Canadian and of Ghanaian heritage, and she describes herself as black. She worked within a six-person team, her five colleagues all being white. During her time with the respondent, she described a number of events which she classified as racial discrimination or workplace harassment due to race.

These incidents included colleagues asking if “Gifty” was her real name, if she ate with her hands, and if her hair was real or a wig. The former Smile Publication employee also took certain comments made in her presence, such as “it’s too dark in here” or a colleague being “scared of black people, for race discrimination. Furthermore, the Smile Publications former employee alleged that she was being treated less favourably than her colleagues due to her race.

Smile Publications Former Employee Sacked Due to Sales Technique

The claimant was dismissed on 21 November 2022, during her probationary period. The respondent stated that this was due to her sales technique and the fact that she did not respond to constructive criticism in this regard. The claimant contested that the dismissal was due to her race and the fact that she had made her colleagues jealous by making a good sale.

Although the claimant was asked to leave immediately upon her dismissal, she was paid in lieu of notice. She subsequently brought multiple claims of direct race discrimination relating to the treatment she alleged to have received. She also brought a claim for breach of contract for not being allowed to work her one-week notice period.

Employment Tribunal’s Judgment in Gifty Robinson v Smile Publications Ltd

This case was heard in the East London Hearing Centre by Employment Judge Housego. Consideration was given to all the facts and the evidence presented by both parties. The tribunal went systematically through each allegation raised by the claimant and was satisfied that none of these had amounted to race discrimination under UK employment law.

Under the Equality Act 2010, direct race discrimination occurs if one person treats another less favourably because of the person’s race. Here, the tribunal held that this was not the case for the claimant.

Claimant’s “Heightened Sensitivities” a Cause for Misinterpretation

It was found that some of the allegations had not happened at all (such as the comment about fearing black people). The remaining had been misinterpreted by the claimant due to her “heightened sensitivities”.  Apparently, the former Smile Publications employee was not sent home with a cough but asked to go and get tested for Coronavirus. In comparison, her colleague smoked and often coughed but this was not a concern.

The tribunal held that the questions asked by the claimant’s former colleagues were “no more than genuine interest in someone else’s life and culture, in the context of a warm working relationship.” The comment that it was “too dark in here” related to the light in the room at the time, “given the circumstances of season and location and context”.

The claimant’s discrimination claims were therefore dismissed by the tribunal. The tribunal did recommend that Smile Publications should consider producing and implementing a DEI policy. Moreover, as the claimant received payment in lieu of notice, her immediate dismissal did not constitute a breach of contract by the respondent under UK employment law.

BAME Workers Still Facing Race Discrimination and Microaggressions

A recent survey has been undertaken by King’s College London, the University of Manchester, and the University of St. Andrews. Titled “Evidence for Equality National Survey”, the research investigates the extent of racism and racial discrimination in the UK. Alarmingly, almost a third of participants have faced race discrimination in their employment or education.

Meanwhile, a report published by the Trade Unions Congress has stated that 41% of black and ethnic minority workers experienced racism at work between 2017 and 2022. The most common perpetrators of such racism are colleagues and managers, although customers and patients have participated too. Worryingly, only 19% of those experiencing racism at work reported the incident to their employer.

It’s crucial to remember that racial discrimination may be direct or indirect. This means that it could encompass less favourable treatment of an employee because of their race or indirectly put them at a disadvantage. For example, indirect discrimination may include company policies or practices that are unsuited to workers of a particular race.

If you believe you have experienced racial discrimination or workplace harassment because of your race, like the Smile Publications former employee, we are waiting to help you.

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