Employment Tribunal Confirms Being a Scouser is Not a Protected Characteristic

Employment Tribunal Confirms Being a Scouser is Not a Protected Characteristic

Readers of a certain age may recall a sketch on the 1990s Harry Enfield show in which three moustachioed and bubbled-permed Scousers wearing colourful tracksuits traded insults and then urged each other to ‘calm down’.

At the time it was generally regarded as harmless comedy, regional ‘leg pulling’ in a venerable British comedy tradition and it’s doubtful that it occurred to Harry Enfield that his words would end up being quoted in an employment tribunal claim for race discrimination.

Life has a habit of imitating art, it may have taken thirty years but the Scousers’ exuberant catchphrase has now been quoted by an Employment Judge in tribunal proceedings. The occasion was Ryan v Robertson & Son Ltd, a claim being brought by a bus driver in the Scottish Employment Tribunal.

Mr Ryan had agreed to accompany a colleague Mr Cox to a grievance hearing on 29 January 2021. He and Mr Cox had expected that the hearing would be conducted in person but when they arrived they were presented with a laptop and informed that the meeting chair Sonia Robertson would be participating remotely as she was required to self-isolate by NHS Track and Trace.

There was an argument about whether the hearing should be postponed to allow Ms Robertson to attend in person. It was alleged by the Company that the Claimant became agitated, throwing his arms around in frustration. Ms Robertson repeatedly told him to ‘calm down’.

The Claimant was born and bred in Liverpool and felt that Ms Robertson’s comments were targeted towards him because of his ‘scouse’ background.

The Claimant was so upset following the meeting that he did not attend work the following day. On the day after (31 January 2021) he received a letter terminating his employment due his conduct within the meeting and subsequent unauthorised absence.

The Claimant did not have the 2 years’ service necessary to bring an ordinary unfair dismissal claim so he brought a range of claims including that he had been discriminated against on grounds of ‘ethnic or national origin’. This argument was dismissed. In the most interesting part of the judgment, the tribunal found that the discrimination complaint would have been well founded if the comments were directed towards the Claimant because he was English.

The problem for the Claimant was that Ms Robertson’s comments were more localised than this and both ACAS guidance and case law provide that the law does not cover local or regional distinctions. According to ACAS:
“An employee working in the south of England who feels they are being treated unfairly solely because they are a “Geordie” or an employee treated unfairly solely because they are a “Southerner” with an Essex accent working in the north of England are unlikely to succeed in claims of race discrimination.”

The tribunal therefore found against the Claimant and said that Ms Robertson’s comments were intended to mock the Claimant as a Liverpudlian ‘but not as an English person’. The Claimant’s claim was struck out on this basis.

This case is unlikely to be the final word on the law in this area. Sensitivities around issues of identity have heightened in recent years and social class – and related characteristics such as accent and appearance – are the final frontier to receive legal protection. It seems ultimately perverse and inconsistent that someone who is denigrated as a Taffy or a Jock should receive legal protection but a Geordie or a Cockney should not.

This blog was prepared by Mark Alaszewski, employment solicitor at didlaw.