Yes, held the Employment Tribunal – rather unsurprisingly – in the recent case of Tesfagiorgis v Aspinall’s Club.
In December 2019, the Claimant attempted a shift swap with another member of staff. This shift swap was rejected by the Respondent because it would have meant the Claimant dealing to a customer who had requested that only ‘females with fair skin’ work on his gambling table.
When she raised a direct race discrimination complaint with her manager regarding the issue, he remarked that the customer in question was a ‘million pound’ client who she couldn’t reasonably expect to be turned away on the basis of her complaint.
With no judgment yet published by the Tribunal, and newspaper articles thin on facts, one can only speculate as to what the Respondent argued at the Tribunal by way of defence. It seems they suggested they had a policy of granting all high-rolling customers’ requests, no matter the impact on staff. It can be assumed that they then argued that this policy was applied to all staff and was therefore indirectly discriminatory in nature, enabling them to plead the defence of justification. That justification appears to have been mooted by the Respondent as a real business need. In other words, if they refused high rollers’ requests, the business would suffer significantly.
In a commonsense ruling, the Employment Tribunal rejected this argument, describing the respondent’s actions as ‘direct race discrimination’ on the grounds that ‘but for her race’ the Claimant ‘would have been asked to deal to the patron’. It followed, said the Tribunal, that the Respondent’s granting of the customer’s request was ‘less favorable treatment of the Claimant because of her race’ which goes against the Racial Discrimination Act 1975.
Obviously, we are not privy to without prejudice discussions, but it does beg the question of who advised the Respondent it was wise going to a Tribunal on this matter. One would have assumed that an employer – particularly one in this field, with such ‘high-rolling’ customers – would not want such an egregious act of direct race discrimination to come to light, with the inevitable reputational damage it would cause, and would have been keen to settle the case before it caught the attention of the press.
This blog is by Jack Dooley, Paralegal at didlaw.
