Mr L Mendez v Plasflow Limited — 2020

The case was heard at Sheffield on 8 and 9 October 2020 before Employment Judge Little, Mrs K Grace and Mr K Smith, with a reserved judgment dated 16 November 2020. The tribunal recorded that the claimant, Mr L Mendez, brought claims of harassment related to race, direct race discrimination and unfair dismissal against Plasflow Limited.

On direct race discrimination, the tribunal rejected the allegations that the claimant was singled out by being required to work two CNC machines, that the February 2019 near miss report was race-based, that Mr Sanderson's instruction for a toolbox talk was because of race, that Mr Whitehouse's handling of the matter was race-based, and that the dismissal could be compared with the earlier marker-pen incident. It did find, however, that Mr Oglesby acted discriminatorily when he allegedly dismissed the claimant's report that Mr Hamshaw had made a racist comment, and it described that as turning a blind eye to a racist remark. The overall direct race discrimination complaint therefore succeeded in part.

The harassment claim succeeded. The tribunal found on the balance of probabilities that Mr Hamshaw said to the claimant words to the effect 'shut up you black cunt, we are not at school' during the 3 May 2019 altercation. It held that this was unwanted conduct related to race and that it had the purpose of violating the claimant's dignity.

The tribunal also upheld the unfair dismissal claim. It accepted that conduct was a potentially fair reason for dismissal, but held that the dismissal was unfair under section 98(4) of the Employment Rights Act 1996 because the respondent did not properly investigate the alleged racial slur, which mattered to consistency and mitigation. The tribunal found that the claimant had contributed to his own dismissal to the extent of 30%, so any future remedy would be reduced by that percentage. No monetary award was quantified in this judgment.