Former Scottish government employee unsuccessful in racial harassment claim before Employment Tribunal

About this case:

• Citation:
  4110998/2021
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge D Hoey

Claimant J Adegun, who was ethnically black, sought to establish that the Scottish Ministers had created a hostile environment that eventually resulted in her resigning from her role. She had been underpaid in the first month following her transfer to a new role, in which she was later subject to a performance review based on concerns expressed by the respondent.

The case was heard by Employment Judge David Hoey with two other members of the Tribunal. The claimant appeared in person, with the respondent represented by S Monan, solicitor.

Staffing issue

From June 2019 to 2021, the claimant worked as a finance administrator within two different directorates, passing her final probation review with the highest overall grade attainable within the Scottish government. In June 2021, she transferred to another role with a higher salary in the Housing and Social Justice Directorate.

During the claimant’s first month in her new role, she received an underpayment due to her change of grade not yet being processed. This happened to 130 other members of the respondent’s staff, not all of the same ethnicity or gender, that month due to a staffing issue within the payroll team. An email was sent to the 131 staff members affected, which the claimant denied receiving.

The claimant had a Teams call with the Team Leader for the Change of Grade Team within the respondent’s HR department, Mr James Walls, to discuss the error. During the call, the claimant accused him of failing to process her change of grade because she was black and he was “a racist” and repeatedly cut him off when he tried to explain the situation. The evidence of Mr Walls was that he ended the call because he was not prepared to be subject to the tirade launched against him.

Later, the respondent began to have concerns about the claimant’s performance in key areas of her role. At a meeting in March 2022, she was informed of these concerns and later she was told that it would not be possible for her to continue in the role and offered her a place in the Ukraine team. She later resigned on 20 May 2022. It was the claimant’s position that she had suffered a detriment when she was told by her line managers, Ms Kehoe, that she was slow at doing her work and making too many mistakes.

No sinister purpose

In its decision, the Tribunal said of the claimant’s evidence: “While the claimant was clearly passionate about her case and her treatment, the Tribunal found that her evidence was, in places, not credible nor reliable. The claimant had limited and poor self awareness and was unable to accept the facts when issues arose with which she disagreed, even although the objective position and evidence was clear.”

It continued: “The claimant did not engage with the specific criticisms levelled at her and focussed instead on other areas (where she had performed well). Instead of seeing her managers as trying to support her and help her reach the required level of performance, the claimant sought to find disagreement and a sinister motive, which was not present.”

Addressing the conduct of the claimant’s line manager, the Tribunal said: “The way in which the claimant was told she was not performing did not amount to a detriment in law. It was part of the normal performance management process. Had the manner of the discussion been different and arguably had action been taken without advising the claimant of the issues, such conduct could well amount to a detriment but advising the claimant as to genuine concerns about her performance in the way it was done did not amount to a detriment.”

It added: “While the claimant disagreed with the respondent’s assessment of her, the respondent reached a fair and reasonable conclusion. The respondent’s view, reached following an assessment of the evidence of the claimant’s performance, with their experience of the role and the demands of it, was that the claimant was unable to properly discharge key responsibilities. The respondent was genuinely concerned for the claimant’s welfare.”

The Tribunal concluded: “It was regrettable that the claimant had not fully engaged with the objective position and instead focused on what she perceived the position to be. Whilst the claimant may have been treated differently on other occasions because of her race, the Tribunal found no evidence whatsoever to support her assertions in this case.”

The claim was therefore dismissed.