Case Review: Race discrimination employee was not victimised

The recent case of Burrell v Micheldever Tyre Services Limited^[1] highlights that employers need to be careful before relocating staff who have made allegations, in this case allegations of race discrimination.

Mr Burrell was employed at the Fareham branch of his employer as a Tyre Fitter.  He was the only black employee in that branch and raised a grievance claiming that a number of racist comments had been made by colleagues and that management had not prevented these.

Mr Burrell went on sick leave after issuing a claim for race discrimination.  When he returned to work his employer proposed that ACAS mediate the claim and that Mr Burrell should work instead at the Micheldever branch.  Mr Burrell rejected both proposals after which the employer informed him that his employment contract required him to relocate where necessary, and that his employment would be terminated if he refused.  The employer subsequently wrote to Mr Burrell confirming his change of principal place of work, and when he did not start work at the Micheldever branch on the appropriate day he was dismissed.  Mr Burrell made an internal appeal for unfair dismissal which failed.

The original decision by the Employment Tribunal found that although his dismissal had been fair, the requirement to relocate him was an act of victimization, and that as a result Mr Burrell had suffered direct race discrimination.

The Employment Appeal Tribunal upheld the original decision in that the dismissal was fair and that he had suffered direct discrimination.  However, the EAT disagreed that the act of relocating Mr Burrell had amounted to victimization.

The EAT emphasized that the change of workplace had only been suggested after Mr Burrell had turned down the employer’s two proposals of ACAS mediation and relocation.  Given that Mr Burrell’s alternative solution was to dismiss or relocate the colleagues who had made the racist comments was unreasonable, the EAT found that relocating him was in fact “arguably the best solution”.

Employers should be aware of how they treat an employee who has alleged a form of discrimination in the workplace, and endeavour not to take any further steps which could be perceived by the Claimant as detrimental or in retaliation to the claim.