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Employment Law Case Update: Direct Discrimination, Harassment and Victimisation

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The advent of social media and instant messaging services like WhatsApp, has given an employers an additional avenue to promote their businesses and communicate with their employees, but they so also present significant dangers that become very apparent in the case of Mr K Krabou v Tower Hamlets Homes.

Khalid Krabou had worked as a caretaker for Tower Hamlets Homes since 1989 without incident until a new manager joined the support team in 2011.

A London tribunal heard that this manager – Jimmy Quane – created a “hostile working environment” around Mr Khalid Krabou. Mr Krabou, a North African/Moroccan Muslim, said his “predominantly white” all-male team created a culture of “casual racism and sexism”, especially through the use of WhatsApp, for example referring to him as a terrorist because of his ethnicity.

Following multiple discriminatory incidents, Mr Krabou filed a harassment and bullying complaint in April 2018, stating that Quane “set out to target him” and had “singled him out for criticism” on several occasions. Incidents included disagreements regarding use of work and personal email accounts, the way he had reported theft at work, the borrowing of a van without proper authorisation, failure to carry out occupational health recommendations and a timekeeping warning.

After numerous disciplinary hearings Mr Krabou concluded he was being discriminated against due to his race and religion. At the time, despite a suggestion from another manager, Quane was not suspended and still continued to manage the claimant.

Adam Coates, THH’s Head of Finance, was appointed to investigate the grievance and held meetings with Quane in June and July 2018 when Mr Krabou again complained he had been singled out by his manager. Coates upheld two of Mr Krabou’s complaints - the first where Quane had failed to follow an HR procedure correctly and the second where Quane had failed to follow occupational health’s advice - but did not make any finding of discrimination or harassment, commenting that Quane had acted with the ‘best of intents’.

At this point Mr Krabou, in appealing, revealed the content of a WhatsApp group to his employer.  Originally formed for work purposes, the group had quickly deteriorated into “personal messages, many of which consisted of highly offensive material, including images, videos and text of an explicitly racist, Islamophobic, sexist and pornographic character”.

Many messages sent by Quane to THH’s senior management team were later presented within the tribunal. These included a message sent by Quane showing Muslim schoolgirls wearing a burka, captioned “Khalid school photo he’s fourth from the right”, a video of two men of Arabic appearance tying a camel to a tree with the message ‘Khalid on holiday’ and a video of Muslims praying in a mosque with the reference ‘Khalid’s wedding video’.

When Mr Krabou posted a picture of himself and his son sitting on the beach Quane responded with a racial slur. Numerous other racially discriminatory messages appeared within the WhatsApp group.

After the appeal hearing manager became aware of the messages he referred the appeal to an external investigator - but the appeal was rejected.

Mr Krabou then brought claims of direct discrimination, harassment and victimisation and the claim regarding Quane was upheld. Within the grievance process and before the tribunal it was alleged that the claimant had himself circulated pornographic material in the WhatsApp group and that this in some way negated the impact of the racist material. The tribunal determined that the pornographic material - which was generally considered by group members as not offensive - did not have the effect of removing the impact of the racist material.

This case presents the danger to employers of participating and allowing inappropriate content to take place on platforms such as WhatsApp. Social Media policies and those addressing bullying and harassment within the workplace should be reviewed to ensure that this type of behaviour should be discouraged. If you would like someone in our Employment team to review your social media policies or staff handbooks, you can contact the team by emailing employment@warnergoodman.co.uk or calling them on 023 8071 7717. Regular reviews of staff handbooks and contracts are also available through our Peace of Mind package.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.