Claimant v CMR Surgical Limited
Outcome
Individual claims
Claim succeeded in relation to the 'foreigner' remark on 4 October 2022 by Ms Tubacka, which was unwanted conduct related to race that created an intimidating, hostile, degrading, humiliating or offensive environment. The tribunal found this was a microaggression that singled the claimant out and would not have been said to a white British employee. Most other alleged acts of harassment failed as they were either not proved, not related to race, or did not meet the statutory threshold.
Claim succeeded in limited scope. The 'foreigner' remark on 4 October 2022 amounted to less favourable treatment because of race. The tribunal found Ms Tubacka held an unconscious bias against the claimant, perceiving his poor communication and behaviours as attributable to him being 'foreign'. This bias played at least some part in how she treated him, including in the redundancy scoring exercise, which the tribunal found may have been pre-determined at least in part by this bias. The tribunal could not rule out that the outcome was affected by racial bias even if a fair process might have reached the same result.
Facts
Claimant, an Indian national employed as Supplier Engineer from August 2021, initially thrived under John Bailey's supportive management despite some communication issues. In September 2022, Marta Tubacka was promoted to be his line manager. Their relationship was hostile from the outset - she told him he was 'a foreigner' in October 2022 and managed him with a direct, confrontational style. She placed him on informal then formal PIPs, gave him a 2/5 appraisal rating, and ultimately scored him lowest in a redundancy exercise in May 2023. Claimant alleged this treatment was discriminatory. He also made covert recordings of colleagues despite warnings.
Decision
Tribunal found that the 'foreigner' remark on 4 October 2022 constituted both harassment and direct discrimination because of race. This revealed an unconscious bias that permeated Ms Tubacka's subsequent treatment of the claimant, including in the redundancy scoring which was found to be influenced at least in part by racial bias. Most of the other 38 allegations failed. The tribunal noted the claimant's own conduct (covert recordings, undermining authority, poor communication) contributed to how he was treated and would be reflected in remedy.
Practical note
Calling an employee 'a foreigner' is race discrimination even if intended innocuously, and can evidence unconscious bias that taints subsequent decisions including redundancy selection, though tribunals will consider contributory conduct when assessing remedy.
Legal authorities cited
Statutes
Case details
- Case number
- 3311224/2023
- Decision date
- 20 February 2025
- Hearing type
- full merits
- Hearing days
- 6.5
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Supplier Engineer
Claimant representation
- Represented
- No