Mr J. Kelly v Hoo Hing Ltd — 2022

The tribunal found that the Claimant, Mr J. Kelly, is of Irish nationality and has a pronounced southern Irish accent. On 5 August 2020, after a near-miss safety incident involving heavy materials, Mr Montgomery responded to the Claimant's complaint by adopting what the tribunal found to be a mock southern Irish accent, together with head and shoulder movements the Claimant described as like a leprechaun. The tribunal accepted that this was unwanted conduct related to race. It found that Mr Montgomery's purpose was not to create the proscribed environment, but that the conduct did have that effect on the Claimant and that it was reasonable for it to have that effect in the circumstances.

The harassment claim under s.26 EqA therefore succeeded. The tribunal also found that, on the same facts, it would have upheld direct race discrimination because the conduct was inherently discriminatory and because part of the reason for Mr Montgomery's behaviour was that the Claimant was Irish. However, because the harassment claim succeeded, s.212(1) EqA meant the tribunal could not also uphold direct discrimination on the same conduct, so that claim was dismissed.

For 20 August 2020, the tribunal found that Mr Montgomery decided that the Claimant should remain in a meeting room for most of the day, apart from breaks, after the Claimant had challenged his instructions about a power pallet truck and had referred to an ongoing grievance. The tribunal rejected the Respondent's explanations for the restriction, including suggestions about training, duty of care, Covid-19, and the grievance process, and found that Mr Montgomery personally ensured the Claimant returned to the room after breaks. It held that the treatment was a detriment and that the protected act was the grievance alleging race discrimination, so the victimisation claim under s.27 EqA succeeded.

No remedy figure was fixed in this judgment. The tribunal recorded that the only remedy available was injury to feelings plus any interest due, and indicated that the combined award was likely to fall within the middle Vento band, but it directed the parties to try to agree compensation or make further submissions. The judgment therefore records liability findings only, not a final monetary award.