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Victimisation and discrimination

Posted on 30th May 2013
Case law

Is it victimisation if an employer asks an employee to relocate to a new place of work following his allegations of racial harassment? The Employment Appeal Tribunal concluded ‘no’ in this case.

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the requirement for Mr Burrell to relocate was not because he had raised his grievance even though the abusive remarks had been examples of direct race discrimination

Micheldever Tyre Service Ltd v Burrell [May 2013] EAT

The facts

Mr Burrell was a tyre fitter. He started working for Micheldever Tyre Service (‘MTS’) in November 2008. MTS had its head office in Micheldever in Hampshire but Mr Burrell worked at the Fareham branch. Mr Burrell was the only black employee at the Fareham branch.

Shortly after Mr Burrell started working for MTS he became involved in banter of a racial nature. Mr Burrell subsequently brought a claim in the employment tribunal regarding his alleged racial harassment. The employment tribunal found that Mr Burrell was a willing participant in the banter until September 2009. From that date the position changed. Mr Burrell complained to his line manager about the comments that were being made. Following Mr Burrell’s complaint a team meeting was called and it was made clear there should be no more name calling or abusive remarks, whether or not in jest, between the team members.

Following an argument with his line manager in November 2009 Mr Burrell was suspended. When he returned to work he informed the MTS’s HR Manager and his area manager that he was still being called names and this had become annoying and unwelcome.

Mr Burrell submitted a grievance on 11 November 2009. The initial grievance focussed on the argument Mr Burrell had with his line manager and his suspension. However, Mr Burrell subsequently expanded upon the situation and made it clear that the grievance covered a number of matters including bullying, harassment and discrimination.

MTS delayed the investigation and the outcome of the grievance. By this time Mr Burrell was off sick.

When MTS eventually gave its decision it did not uphold the grievance. Mr Burrell appealed and this too was dismissed. Mr Burrell was not happy with the outcome of the grievance and submitted the first of his two claims to the employment tribunal.

In June 2010 the claimant unexpectedly attempted to return to work. Following his return to work MTS gave Mr Burrell two weeks’ paid leave while arrangements were made to try to resolve the issues between Mr Burrell and MTS. Mr Burrell initially gave his consent to be involved in mediation through Acas but later withdrew his consent.

Mr Burrell then raised a further grievance. In an attempt to resolve the issues MTS offered to transfer Mr Burrell to its Micheldever branch which was approximately 30 miles from Fareham. In a letter to Mr Burrell MTS pointed out that there were two vacancies at Micheldever and he could choose which of those two he wanted. MTS also made it clear that it believed Mr Burrell’s journey time and cost would be the same as travelling to Fareham but if there was any increase in his costs MTS would pay for the additional costs. It also pointed out that the opportunities in terms of salary were better at the Micheldever branch. Mr Burrell rejected the offer.

Mr Burrell’s contract of employment contained a mobility clause which permitted MTS to require him to relocate to an alternative work place. MTS relied on this clause to relocate Mr Burrell to Micheldever. Mr Burrell refused to follow the management instruction and was subsequently dismissed. He then brought his second employment tribunal claim.

The decision

Victimisation occurs where a person is treated less favourably by reason of that person having made an allegation about, raised a grievance about or brought proceedings in relation to discrimination (a ‘protected act’). For victimisation to be made out the claimant has to show that the protected act was the real reason or motive behind the treatment complained of.

Mr Burrell claimed that he had been unlawfully victimised against because MTS required him to relocate. He argued this was because he had raised a grievance about the racial harassment against him. The EAT had to decide whether requiring Mr Burrell to relocate was less favourable treatment by reason of the fact that he had previously raised a grievance regarding to this racial harassment.

The EAT found that the requirement for Mr Burrell to relocate was not because he had raised his grievance even though the tribunal had correctly found the abusive remarks had been examples of direct race discrimination.

The EAT concluded that MTS was entitled to rely on a contractual mobility clause and were trying to resolve the issues between Mr Burrell and MTS. The request was reasonable in the circumstances and arguably the best solution to the problem that had arisen. MTS was not motivated by any protected act so the claim of victimisation failed.

The EAT took into account Mr Burrell’s refusal to take part in Acas mediation; MTS had offered to choose which job to take on; and he would be paid any out of pocket expenses if his travelling costs were higher. MTS’ desire to find a solution was the reason for the request being made and not because Mr Burrell had raised his grievance.

In practice

Forcing an employee to relocate his place of work may well amount to victimisation if an employer is motivated because the employee had raised a discrimination related grievance, i.e. carried out a protected act. But where the employer is motivated by genuine intentions not related to a protected act then a claim for victimisation will not succeed.

This area of law is difficult and we always recommend that you take advice from us before imposing any requirements on an employee who has raised a grievance or who has been involved in any incidents relating to discrimination. It is prudent to make sure you proceed cautiously to minimise the risk of victimisation claims.

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