Abubakar v Makro Serlf Service Wholesalers Ltd

Employment Tribunal

9 May 2016

Race Discrimination: Direct

Mr Abubakar was employed in a butchery department at the respondent retail store. In September 2014 he applied for promotion to the role of supervisor. He heard nothing about his application but in the following February another employee, who was white, was recruited to the post even though according to Mr Abubakar’s knowledge he had no experience of their area of work and left within a few weeks of his appointment.

Mr Abubakar brought a grievance against Ms Walker, the store manager, complaining that his application had not been considered because he is black. His grievance was upheld on grounds that his application had been dealt with incompetently, but not that there had been any race discrimination.

The role was advertised again but the title had changed to butchery manager. Mr Abubakar applied. He was interviewed by Ms Walker who did not take any notes and did not complete the scoring on the recruitment form. She told Mr Abubakar that he had been unsuccessful. He suggested that he be taken on as a trainee manager to enable him to show that he had the abilities needed to be a manager, but Ms Walker refused.

In the absence of a butchery supervisor or manager, Mr Abubakar had taken on extra responsibilities. He went to see Ms Walker to discuss the progress he had made and that he was up to the promoted role. It was at subsequent meetings with Ms Walker that Mr Abubakar became concerned. He is a Muslim and as the festival of Eid was approaching he wanted to get time off. On that occasion, Ms Walker asked him about being a Muslim and handling pork and other non-halal meat products. Mr Abubakar said it did not concern him. When discussing possible promotion Ms Walker said that she had to make sure “our customers are fully comfortable working with you and that they will understand your accent”. Mr Abubakar took this to be a reference to his African accent.

Subsequently, a Mr Franklin was appointed as butchery supervisor. He had management experience but was not experienced as a butcher. He too is white. He was not interviewed for the role. In the event, Mr Franklin did not take the job and in January 2016 Mr Peter Joyce, who is also white, was appointed to the role of butchery manager.

Mr Abubakar claimed direct discrimination on the grounds of race and religion or belief.

The tribunal accepted Mr Franklin as a comparator. Although Mr Franklin had more managerial experience, the claimant had considerably more butchery experience – which had been a requirement in the original advertisement. The tribunal also took into account the fact that all those appointed to the role since the claimant expressed an interest were white.

The tribunal also considered Ms Walker’s attitude to the claimant. It found that at the interview she did not take any notes, but she told the tribunal that, had she scored him, she would have given Mr Abubakar the lowest score across the form as “the interview had been so poor”. This, the tribunal said, “indicates a failure to appreciate the claimant’s skills and experience, which were not, as she suggested, irrelevant to the post”. Also, it added, her failure to even consider the claimant at the time Mr Franklin was offered the post was “indicative of her attitude to the claimant and infer from this and the surrounding circumstances, including the comments about his accent, that there are facts which strongly suggest less favourable treatment because of the claimant’s race”.

These factors were sufficient to shift the burden of proof to the respondent, and as it had been unable to show that race played no part in the decision not to appoint the claimant, his claim of direct race discrimination was upheld.

The tribunal accepted that Ms Walker had made the comment about the claimant, as a Muslim, handling pork and other meat, but found that it was not of any great significance to Ms Walker and, more importantly, it did not cause the claimant any great concern at the time. The tribunal therefore rejected the claim of direct discrimination because of religion or belief.