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Can being ‘rude’ amount to discrimination?

September 7, 2023

In most workplaces, it would be fair to expect that please would precede any request and thank you would always follow it but, if either did not, would that be grounds for complaint or, at worst, a sign of discrimination?

Those questions were recently considered in the case of Mrs B Peters v Kensington Caffe Limited (2208124/2022).

The facts

Mrs Peters was employed as Chef de Partie for a very short period (23 August 2022 – 27 August 2022).

During her time at the Respondent she raised with a colleague, Mr Bartczak, that she would like requests to be followed by the word please. Mr Bartczak noted that Mrs Peters’ “communication style was ‘polite, and heavy with pleasantries and niceties’”. Mr Bartczak explained to Mrs Peters that his communication style was “a normal, professional way for a kitchen”.

Mrs Peters then began working with another chef, Ms Gurung, whom Mrs Peters also felt was being rude because Ms Gurung was not providing instructions with the word, please.

On 26 August, Mrs Peters, Mr Bartczak and Ms Gurung were working together. Ms Gurung had recently suffered a bereavement and Mr Bartczak explained the situation to Mrs Peters and asked that she contact him if she had any questions. While at the beginning of the shift Mrs Peters did so, as the shift went on, she started to engage Ms Gurung in conversation either about work or more generally.

Ms Gurung did not engage with Mrs Peters but Mrs Peters continued to ask questions. Ms Gurung then became upset and Mr Bartczak spoke to Mrs Peters to try and calm the situation and again reminded her of Ms Gurung’s recent bereavement and his comments about the language of the kitchen and that not saying ‘please’ was not rudeness in that environment.

Following the conclusion of Mr Bartczak’s shift, Mrs Peters and Ms Gurung were left together to close the restaurant. A dispute between them arose and Mrs Peters alleged that Ms Gurung said that “we are from [a] different culture [so I don’t] need to say please”. Ms Gurung called the head chef, Mr Sklyarov. The tribunal accepted that on the phone Ms Gurung said that she asked Mrs Peters several times to put bread on the grill but she did not do so. This was because she (Ms Gurung) was not saying please. On that call Ms Gurung did not mention anything to do with Mrs Peters’ race or ‘background’.

Shortly thereafter, following a brief investigation, Mrs Peters was dismissed.

Issues

The tribunal found that Ms Gurung had not made the comment about different cultures but, even if she had, it did not amount to an indication that Ms Gurung was racially prejudiced against Mrs Peters and because the tribunal found that Ms Gurung spoke the same way to everyone.

The tribunal also considered the process followed by the Respondent in its dismissal of Mrs Peters. It concluded that, while not necessarily best practice, Mr Sklyarov felt that he had sufficient information to make a decision after speaking with the relevant staff.

Furthermore, it considered Mr Sklyarov’s position that Mrs Peters’ disruptive behaviour was a “red flag”, particularly given her short time with the business. An interesting factor in the decision-making process was something that Mr Bartczak confirmed in his conversation with Mr Sklyarov, whose opinion he trusted, that Mrs Peters was “basically OK from a skills perspective but nothing extraordinary”. Mr Sklyarov therefore weighed up the ‘red flag’ issues, as he saw them, with someone whom it was felt was not extraordinary in their work. This resulted in Mrs Peters’ dismissal.

Points to remember

This case is quite unusual but there are some takeaway points:

  1. As far as possible, follow your internal procedures in relation to grievance and disciplinary investigations, particularly where these are contractual. While it might seem like a pain, they can provide a good paper trail to show that you considered relevant and objective facts before reaching any decision.
  • While bearing that in mind, don’t let the process outweigh the benefit it brings. This case is a reminder that, even though the process could have been better, you should not make perfection the enemy of the good. The tribunal will consider whether you carried out a reasonable investigation in all the circumstances.
  • Be wary of discrimination. While in this case the tribunal found that there was no direct discrimination, that is always dependent on the facts of the case. When considering dismissal, even where the individual has less than two years’ service, consider any discrimination risks. Take advice if you are not sure.

If you would like advice about any of the issues raised in this blog, or any other area of employment law, then please get in touch with the Blackadders Employment law team, with offices throughout Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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