Scottish Postie was not harassed when English manager could not understand him
Was it race discrimination for an English manager to tell a Scottish postie that “I can’t understand you”? Or furthermore for the same manager to state to his Royal Mail colleague that there were “a few Scots” he couldn’t understand and “Kevin Bridges” was one of them?
These were the facts of the employment tribunal claim by Mr McCalam against the Royal Mail Group. The manager, Mr Wiggs, was alleged to have also screwed up his face and said, several times, “I can’t understand you” to Mr McCalam, during a meeting which took place without witnesses. Mrs Goggins was busy elsewhere when the incident took place.
The Equality Act 2010 defines “race” as “colour, nationality and ethnic or national origins”. The EHRC Code states that “national origins must have identifiable elements, both historic and geographic, which at least at some point in time indicate the existence or previous existence of a nation”.
Previous tribunal cases have determined that Scottish, English, Welsh and Irish could all lay claim to distinct national origins and therefore could pursue claims if treated less favourably because of the employee’s heritage.
So far, so good…
Interestingly, the ACAS Guide makes it clear that the law does not cover more local or regional origins. Therefore, it is unlikely that a Nisich (someone from Ness, the island of Lewis) could claim discrimination if a Fifer couldn’t understand them. Similarly, a “Geordie” who was treated less favourably by a “Southerner” would not be likely to succeed with a race discrimination claim.
However, in Mr McCalam’s claim, it transpired that he had suffered a stroke in 2016 which was said to impact on his memory, how he processed and filtered information, including language. Furthermore it also transpired that Mr McCalam’s speech, when irate, could increase in pace and could be difficult to understand.
The comments were allegedly made by Mr Wiggs during a “fact finding meeting” with Mr McCalam into a collision Mr McCalam had, where he had driven his van into a garden wall, when making a delivery. Thankfully, Jess was unharmed in the passenger seat.
It was not in dispute that Mr Wiggs had, on previous occasions, asked Mr McCalam to slow his speech down, as he was speaking too quickly.
Ultimately the tribunal found that Mr Wiggs was not discriminating against (or harassing) Mr McCalam because he was Scottish. Instead, it was due to the speed of Mr McCalam’s speech and Mr Wiggs having difficulty understanding him, based on his medical condition.
So watch out, when referring to employee’s accents, particularly where the accent has distinct national origins!
And perhaps also stay away from comparing workers to Kevin Bridges, Frankie Boyle, Susan Calman, Iain Stirling, Fred MacAulay or any other stand-up comic!
If you need any employment law advice, please get in touch with Blackadders’ Employment Law team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
