Lofthouse v Eddie Stobart Ltd ET/1800001/11
Date added: 9 February 2012
race discrimination | vicarious liability | statutory defence
This case is a good example of how an employer should deal with a complaint of discrimination.
Practical tips
This case demonstrates how an employer, by handling an employee’s discrimination complaints in the right manner, can successfully defend a tribunal claim.
Even if the conduct complained of constitutes discrimination, the employer may be able to avail itself of the statutory defence and avoid vicarious liability. |
Mr Lofthouse, who is of mixed race, started work for Eddie Stobart Ltd, the haulage and warehousing company, in 2009. He works as a warehouseman and considers banter an “important pleasure in his working life”, defining it as “the mutual but jovial exchange of insults with his colleagues”.
In Mr Lofthouse’s race discrimination claim against the company, he alleged that, in summer 2010, he had complained to his line manager about the use of racist language in the workplace.
Mr Lofthouse also alleged that, on 4 October 2010, matters had got out of hand in the staff canteen. He was in a group of colleagues who were exchanging insults, which he “clearly was enjoying and inviting”, and referred to an overweight colleague as a “fat bastard like Johnny Vegas”, the well-known comedian. The colleague replied that, if he was “Johnny Vegas”, then Mr Lofthouse was “the monkey” (not “a monkey”, the tribunal later found) from the well-known television advert for PG Tips. Mr Lofthouse also alleged that during this conversation he was called “PG” by colleagues, and had been for some time previously.
Mr Lofthouse and his colleagues were being very loud during this incident, and a manager in the adjoining room leaned into the canteen and shouted a reprimand, which Mr Lofthouse took personally.
The following day, Mr Lofthouse raised a formal grievance. It referred to his working conditions and, briefly, to two incidents, one of which was what had happened in the canteen the previous day. However, he did not complain about racial abuse, only the manner in which the manager had reprimanded him for the noise.
At this point in time, Mr Lofthouse was facing disciplinary proceedings, which he believed related to “some relatively minor matter”. In fact, the matter concerned an accident that had resulted in an injury to a colleague, and Mr Lofthouse was dismissed for failing to follow health and safety procedures. Following Mr Lofthouse’s dismissal, the company heard his grievance. The tribunal noted that, at the grievance hearing, the only incident to which Mr Lofthouse appeared to refer was the one on 4 October 2010 in the canteen. The company informed him that those involved in this incident would be disciplined.
Mr Lofthouse appealed both the dismissal and grievance outcomes. His disciplinary appeal was successful, and he was re-engaged in a different part of the workplace with no loss of seniority. As part of his grievance appeal, Mr Lofthouse mentioned earlier alleged incidents, and the director hearing the appeal said that the company would investigate them. At the end of the hearing, the director personally apologised for the “perceived slight” that Mr Lofthouse had suffered.
Mr Lofthouse submitted a claim for race discrimination that was, the tribunal observed, “substantially different” to his original grievance letter to the company. He argued that his working environment was racist, and that this had culminated in the “unpleasant” incident on 4 October 2010, for which the company was vicariously liable. He alleged that the way in which the company had dealt with the matter “lacked vigour” and did not enable it to use the statutory defence against vicarious liability, which is where an employer has taken all reasonable steps to prevent the discrimination in question.
The tribunal was satisfied that Mr Lofthouse had not complained in the summer of 2010 about alleged racist comments. Although he had complained about a colleague who had threatened to “rip his head off”, that threat had no racial connotation.
The tribunal found that Mr Lofthouse could not have been persistently called “PG” before 4 October 2010, and that the company had dealt with the incident on that date “entirely properly”. The company had investigated the matter thoroughly, and ultimately given each of the employees involved a written warning.
The tribunal held that Mr Lofthouse was not the victim of race discrimination or harassment. Even if the incident on 4 October 2010 amounted to race discrimination, the company was entitled to rely on the statutory defence. On the evidence before the tribunal, the alleged earlier incidents of complaints to management and repeated racial taunting “simply did not occur”.
Additional resources
- Get more information on racial discrimination in the XpertHR FAQs section:
- Race discrimination awards 2010/11 The 2010/11 Tribunals Service report on employment tribunal and Employment Appeal Tribunal statistics sets out the amount of compensation awarded for race discrimination in 2010/11.
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