Miss D Oyewusi v Orchard & Shipman Group Ltd — 2023

Miss D Oyewusi worked for Orchard & Shipman Group Ltd from 2 November 2021 until her resignation with immediate effect on 29 April 2022 as a Customer Support Co-Ordinator. She brought claims of direct race discrimination, harassment related to race, and victimisation under the Equality Act 2010. The tribunal recorded that she was the only Black person on a five-person team and that the relevant communication took place largely through Teams, WhatsApp, email and the respondent's ReapIt system.

The tribunal dismissed the direct discrimination claim in relation to all the pleaded incidents. It found that the November 2021 hand gif was intended as a friendly message and was not shown to have racial connotations. It also rejected the direct discrimination complaint about the monkey emoji, finding that Ms O'Brien sent it naively as a thumbs-up and that race was not a significant influence on her conduct. The remaining direct discrimination allegations, including the works-order name change, productivity checks, comments in team meetings, and later handling of calls and work queries, were found to have ordinary management or operational explanations rather than race-based treatment.

The harassment claim succeeded only in relation to the monkey emoji sent on 1 December 2021. The tribunal found that the emoji was unwanted conduct, that it related to race because of the widely recognised derogatory association between monkeys and Black people, and that it was reasonable for the claimant to experience it as offensive and harassing. It accepted that Ms O'Brien did not intend offence and was unaware of the racial connotation, but held that intention was not decisive under section 26 EqA 2010. The other harassment allegations failed.

The victimisation claim failed in full. The tribunal treated the claimant's complaint on 2 December 2021 about the monkey emoji as a protected act, but it found that later conduct by Ms Cronin, Ms Lennon, Ms Baker and others was driven by performance concerns, workload pressures, team working practices, or procedural issues, rather than by the protected act. It found that some incidents were unfair or unsatisfactory, including the shortening of the probationary review timetable, but concluded that those matters were not caused by the protected act. It also rejected factual allegations that Ms Cronin terminated the 27 January call or that Ms Mott made the grievance-related accusation alleged by the claimant.

The claim relating to the monkey emoji was out of time on its face, but the tribunal extended time on a just and equitable basis under section 123 EqA 2010. It found that the claimant's lack of knowledge of tribunal time limits until the end of March 2022 was reasonable, and that the later delay was due to attempts to resolve matters amicably. The judgment provided does not record any remedy figures, so no award is extracted here.