A Porsche salesman won his Employment Tribunal claim after suffering horrendous abuse in an all-male sales team with a toxic work culture.
In Rathod v Pendragon Sabre Limited (2600579/2021), a Nottingham Employment Tribunal found a British Asian salesman was unfairly dismissed after he was subject to practical jokes and given racist nicknames such as ‘Chapati’ and ‘Poppadom’.
Shailesh Rathod joined the Sutton Coldfield-based Porsche dealership in March 2018 as the only non-white salesman in an all-male team. The Tribunal found the culture at the dealership was laddish, crude and immature, which manifested into the day-to-day interactions in the workplace on the sales floor. This took the form of food fights, wrestling and topics of conversation involving graphic and crude sexual references.
The Tribunal found at times the culture became even more sinister involving racism, homophobia and misogyny. This included jokes about young female customers attending the dealership and one of the sales executives openly shared racist views, including his own rejection of a family member who had invited a black friend home. The Tribunal found there was inaction, and in fact participation in some cases, by senior sales staff. Soon after Mr Rathod joined he took an Asian flatbread to work for lunch which he ate with his fingers. This was filmed by a colleague who shared it with comments about how disgusting it was. This then became an ‘in-joke’ of how disgusting it was when Mr Rathod was eating with his fingers even if other colleagues did the same. The Tribunal found after this incident Mr Rathod was referred to as ‘Chapati’ and ‘Poppadum’ by other members of the team or they would say these words in close proximity to him.
The Tribunal found Mr Rathod did participate in the culture but also that he had little choice as an outsider but to try and conform to the team’s existing culture. Mr Rathod did what he could to try and integrate into the team, including bringing McDonalds along for staff on his day off. However, the practical jokes seemed to target him. On one occasion a cup-cake was held over his head whilst on a customer call only to be smashed into his head when the call ended.
The events started to impact Mr Rathod’s mental health leading to sickness with stress, anxiety and depression in September 2020. He then raised a grievance against his colleagues which was partially upheld in November 2021. During the investigation one employee, who was accused of discrimination by Mr Rathod, defended himself by saying Mr Rathod had engaged in similar behaviour himself during his employment, such as comments and pictures shared on a WhatsApp chat. The employee raised this to make a point that he was not aware Mr Rathod was offended because he also engaged himself. The company then used the messages to commence an investigation in November 2021 and ultimately dismissed Mr Rathod for racial and sexual harassment, despite the fact that the employee in question had not said he was upset by the comments or felt harassed by them. It would also appear that the company took no formal action against any other employees who had conducted themselves in the same way.
The Tribunal found the dismissal unfair. The Tribunal felt there was no basis for the company to proceed to disciplinary with the allegations they used.
This case serves as a further reminder that workplace culture should be carefully monitored. An employer is vicariously liable for the actions of its employees unless it can show it took all reasonable steps to prevent the discrimination, which will be very difficult if there is clear awareness of discrimination happening yet no action is being taken. The employee in this case tried for many years to put up with what was essentially discrimination and bullying. This eventually led to a grievance which ultimately was a chance for the employer to put things right and potentially avoid a claim. The employer in this case took the employee’s grievance seriously and partially upheld it. However, it treated Mr Rathod differently following his grievance. It took no action to address the culture or sanction those who Mr Rathod claimed racially harassed him, yet used evidence from someone else, who was not even complaining of harassment, to eventually dismiss Mr Rathod. In an unfair dismissal claim a Tribunal will look at all the circumstances to determine whether the employer’s decision to dismiss was within a band on reasonable responses open to them at the time. In this case it was not.
Mr Rathod’s damages will be determined at a later hearing.