Can one inappropriate comment said in the heat of the moment constitute discrimination?

As a recent decision by an Employment Tribunal shows, yes it can!

What is this case about?

This case concerned Mr Nazarczyk, a Polish employee, who made a number of allegations against his colleague Mr Cowley, including that Mr Cowley had dumped clean clothes on a dirty floor in front of other colleagues, refused to authorise annual leave unless he received a bottle of vodka and mocked the Poles when the Polish President tragically died. He also provided examples where British and non-British staff were treated differently, for example, the cars of British workers were not searched but those of non British workers’ cars were.

Mr Cowley denied the allegations and Mr Nazarczyk had no or very little evidence to substantiate these claims and the Employment Tribunal dismissed them.

However, at the heart of the proceedings was one incident where Mr Nazarczyk has asked Mr Cowley if his daughter could work the same shift as him. He was concerned because the shift ended at 11pm and she would have to walk through an area which he considered unsafe. This request was denied because it was felt that on previous occasions when he had worked with his daughter both their work had actually been negatively affected.

In the discussion that followed, Mr Nazarczyk said that he wanted to make sure his daughter was safe as this was not her country and she did not speak the language. Mr Cowley became frustrated and said words to the effect that the claimant’s family should go back to Poland. He never apologised for the comment and Mr Nazarczyk lodged a grievance.

What did the Employment Tribunal decide?

The Tribunal accepted it had been said in the heat in the moment, but the comment was ‘not only inappropriate it was discriminatory’. They concluded that ‘he would not have said something like “if you do not like it here go back to Poland” to a hypothetical British worker’. The comment was deemed to be direct race discrimination. The Tribunal instructed the employer to put in place diversity training if they hadn’t done so.

As we can see, one inappropriate moment said in a moment of frustration and anger can bring about significant repercussions for employers. Read our employer’s guide to racial discrimination to find out what the different types of discrimination are and what steps you can take to prevent it in your workplace.