Tribunal finds two complaints of harassment related to race “well-founded” in case brought by ex-Director of Legal against city council

Rochelle Tapping launched an employment tribunal claim against the local authority after she was dismissed in 2023 at the end of a probation period.

The tribunal ultimately upheld two of the 43 complaints made by Tapping. The remaining 41 complaints alleging that she was discriminated against contrary to sections 13, 26 and 27 of the Equality Act 2010 "are not well-founded and are dismissed", the tribunal said.

When Tapping joined the council as Director of Legal and Governance in November 2022 she was the only black woman on the Corporate Leadership Team (CLT). She was also the council’s monitoring officer.

She claimed her “cards were marked” from the outset of her employment after the chief executive, Matthew Gladstone, and the council's Service Director with responsibility for People & Development Services, Mandy Pullen, learned that she was in a dispute with her former employer, Birmingham City Council, and was alleging that it had racially discriminated against her.

The first complaint upheld by the tribunal centred on a conversation in which the chief executive asked Tapping whether she knew or was friends with Adsuwa Omoregie, who had just been hired as the authority's interim head of legal.

When later asked in an interview with an HR consultant what she thought about the comment, Omoregie, who is also black, said: "Unusual I thought, that is all, I thought it a bit strange as to why he would think we would be friends."

Later in the interview when asked whether she had been treated differently because of her race, she replied: "Oh, I guess, looking back to when we were asked if we were friends, I don't know if it's because he saw 2 black sitting together that he assumed that we were friends talking together, I don't know if is an element, it was a bit unusual when asking if we were friends soon as I was introduced."

Gladstone meanwhile told the tribunal that he recalled asking Tapping and Omoregie if they had worked together, adding that he did so because it is not uncommon for senior leaders to recruit people they have previously worked with or who are otherwise professionally known to them, particularly when filling interim positions.

On considering the complaint, the tribunal said that it did not accept the claimant’s efforts to "portray Mr Gladstone as holding or expressing a racist viewpoint, or that it was 'a deliberate attempt' to make her and Ms Omoregie 'feel uncomfortable'".

It added: "Notwithstanding the Claimant has in our judgement overstated the impact upon her and wrongly attributed a malicious motivation to Mr Gladstone, and that she did not initially complain about the matter, we ultimately conclude that it was reasonable for her to be offended by the comment because of the implicit suggestion, as she perceived it, that two black women in senior roles must know one another, alternatively that Ms Omoregie had not been recruited by the Claimant entirely on merit."

The tribunal added: “Whilst there are no grounds to infer these were Mr Gladstone’s views in the matter, we do not consider that it was unreasonable for the Claimant to be offended by the question and to experience an adverse work environment within the meaning of section 27(1)(b). We therefore uphold the complaint notwithstanding the question was effectively a slip of the tongue and that it was never Mr Gladstone’s intention to cause offence.”

The second successful complaint that was upheld concerned a photo the council's chief finance officer, Cecilie Booth, sent to the CLT WhatsApp group while on holiday in Brazil of a black woman in carnival dress.

The photo appeared "at first glance" to be of a naked woman "except for a plume of green feathers protruding from her head", the tribunal noted.

Booth sent the photo along with a message that read: "The Brazilian samba is a bit racy…"

A second photo was sent two hours later, which "arguably provides some further context, namely that Ms Booth was in good spirits on a much-needed holiday," the tribunal said.

On this complaint, the tribunal said: "…. as regards the picture, we take on board that the Claimant was the only black member of the WhatsApp group. In our judgement that fact, combined with the picture's focus on the black performer's exposed buttocks, rather than for example her abilities (or otherwise) as a performer or dancer, lead us to conclude that the image can be said to relate to race and that it was ultimately reasonable for the Claimant to feel that it created a degrading environment for her and black women in general."

It later added: "Had the Claimant been the only female in an otherwise all male WhatsApp group, we think it would have been recognised more readily that the picture had the potential to cause offence….. Whilst we think that the upset caused to the Claimant was not particularly significant, we think it did offend her sense of what it is and what it takes to be a successful professional black woman, and for that reason we uphold the complaint.”

The tribunal also noted that it was certain Booth did not set out to offend and that her message was intended as a "light hearted communication" with her colleagues back in the UK.

The tribunal concluded by saying that it intended to list the case for a remedy hearing.

Commenting on the decision, Peterborough chief executive Matt Gladstone said: "I am pleased that the tribunal's thorough examination has found in our favour in relation to almost all of the allegations made against the council, including those that related to the claimant's suspension and dismissal as the council's Monitoring Officer.

"In respect of the two claims that were upheld, I am pleased that the tribunal found that the offence caused was never intended. However, we will reflect carefully on the lessons to be learned from this case. 

"Recognising and valuing diversity is one of our core corporate values and one that I personally take very seriously. As an organisation, we will continue to promote a culture where everyone is treated equitably, regardless of race or any other protected characteristic."

Adam Carey