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Clarion ordered to pay employee £8,000 in race discrimination case
The UK’s largest housing association was ordered to pay an employee more than £8,000 after a tribunal found that Clarion’s decision to dismiss her “was an act of direct race discrimination”.
In a judgement published in July last year, the tribunal panel said that Clarion’s decision to dismiss the employee, who described her race as Black Afro-Caribbean, was “extraordinary”.
However Clarion had faced a number of complaints from the employee, who was temporarily dismissed in 2019. The majority of complaints failed, including complaints that other decisions made by the landlord were made as a result of her race.
The tribunal panel concluded that “no conscious decision” was taken by the 125-000 home landlord to dismiss the claimant based on her race, but as Clarion had been unable to discharge the burden of proving that the claimant was not treated less favourably than an employee of a different race would have been treated in the same situation, dismissing her amounted to an act of race discrimination.
The employee’s experience was compared to that of three white Clarion employees who were claimed to have committed worse misconduct but were given final written warnings instead of being dismissed.
The claimant, named S Lyfar in the judgement, has been employed by Clarion or its pre-merger organisations since 2010 as a tenancy sustainment officer.
She was temporarily dismissed from her position in January 2019 because of allegations that were made against her in relation to an incident involving a former resident, to whom Ms Lyfar had been providing assistance for a number of years.
In January 2016, Clarion was in the process of ending the tenancy of the resident, who was referred to as F in the judgement, as they were being moved to sheltered housing following a stay in hospital.
During this time, F’s son was due to attend the Clarion property to collect F’s remaining belongings, however F asked Ms Lyfar to hide a briefcase so his son could not find it.
According to the judgement, Ms Lyfar was told by F’s social worker that there were certain documents and letters that were not to be handed to F’s son and this was noted by Ms Lyfar in Clarion’s CRM system. She also had a one-on-one meeting with her line manager “during which she provided an update in relation to F”.
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Ms Lyfar agreed to hide the briefcase, however the son never attended the property and the keys were returned to Clarion’s voids team to destroy any remaining belongings. It is assumed that the briefcase was destroyed, the judgement said.
More than two years later, in March 2018, a manager at Clarion was contacted by an employee of the Stroke Association, Laura McGregor. Ms McGregor had been working with F, who was no longer a Clarion resident.
The conversations led to Clarion carrying out its own investigation into Ms Lyfar’s conduct, which led to Ms Lyfar being invited to a disciplinary hearing in December 2018.
At the hearing, Ms Lyfar faced two allegations. First, that she hid valuables at F’s address that were subsequently lost. Second, that she failed to raise concerns with her line manager or authorities regarding F in relation to the request by him for her to hide valuables.
At the disciplinary hearing, both allegations were upheld and Ms Lyfar was dismissed, but the decision to dismiss her was overturned at an appeal in March 2019 and Ms Lyfar was instead given a final written warning.
In December 2018, around the same time as the disciplinary hearing, Ms Lyfar submitted a claim to the Employment Tribunal that made a number of allegations regarding race discrimination, as well as harassment and victimisation.
The tribunal panel dismissed the majority of the allegations, for example it rejected the accusation that Ms Lyfar was placed on a lengthy suspension and not given information during this time as a result of her race.
The tribunal panel also dismissed a number of complaints that described Clarion’s actions leading up to the dismissal as examples of harassment or victimisation.
For example, the tribunal found that the failure of Clarion to provide the claimant with more information about her suspension was not an act of harassment as it was not Clarion’s purpose to “violate the claimant’s dignity”, but was because Clarion believed no further information was necessary.
Under the Equality Act, victimisation is when someone treats you badly or subjects you to a detriment because you complain about discrimination or help someone who has been the victim of discrimination
Harassment is unwanted behaviour that is connected to a protected characteristic, such as race.
However, the tribunal panel did rule that the decision to dismiss Ms Lyfar was “an act of direct race discrimination” as per the definition in Section 13 of the Equality Act 2010.
Section 13 of the Equality Act states that a person discriminates against another if, because of a protected characteristic, they treat that person less favourably than they would treat others.
Under the Equality Act, the burden is first placed on the claimant to provide evidence that a breach of the law could have occurred. If the claimant does so successfully, the burden of proof falls on the respondent.
This means it was up to Ms Lyfar to first convince the panel that Clarion could have dismissed her because of her race, with Clarion then having to prove that Ms Lyfar’s race did not play a part in the decision.
The tribunal panel found that the burden of proof had shifted to Clarion because it was “so extraordinary” for Clarion “to dismiss an employee for the particular reasons that were given”.
It also stated that it did not think that the respondent had adequately explained to it why they took the decision to dismiss.
As a result, it felt that the burden of proof should shift to Clarion as it said that its alleged reasons for dismissing Ms Lyfar were “so unsupported by the evidence” that it should “reject those reasons as being genuine”.
“We therefore have to ask ourselves whether the respondent has proved that the claimant’s race plays no part whatsoever in the decision to dismiss her,” it added.
The panel compared Ms Lyfar’s experience to that of three white Clarion employees who it said “committed far worse misconduct than the claimant committed”, but were given final written warnings instead of being dismissed.
This included one employee who lived at the property of a tenant, contrary to Clarion’s procedures, and another staff member who “had financial dealings with one or more tenants, including selling the property of a deceased tenant.
Taking these examples into account, the tribunal found that Clarion had “not proven to our satisfaction that the claimant was not treated less favourably than a hypothetical comparator… would have been treated”.
As a remedy, Clarion was ordered to pay Ms Lyfar £8,236.60.
A spokesperson for Clarion said: “This was a complex case dating back to 2018 and it would not be appropriate to comment in detail. We are pleased that the member of staff has chosen to remain at Clarion.
“We have always celebrated the diversity of our people and are firmly committed to maintaining an inclusive workplace. We have established a Diversity and Inclusion Advisory Group, which includes leaders and representatives from our staff networks. This group monitors progress against our action plan and reviews new initiatives.
“In partnership with our peers in the sector, we are committed to continuing to learn and improve equity, diversity and inclusion for the benefit of our organisation and the communities we work in.”
