Investment Apprentice victimised by her employer after raising a racial bias complaint (Ms J Nyeko v AIG Asset Management (Europe) Ltd – 2204324/2020)

In the case of Ms J Nyeko v AIG Asset Management (Europe) Ltd 2204324/2020, the Employment Tribunal held that the Claimant was victimised due to the concern she raised regarding “unconscious bias” against her at work.

The factual background in Ms J Nyeko v AIG Asset Management (Europe) Ltd

Ms J Nyeko began her employment with AIG Asset Management (Europe) Ltd on 30 July 2018, shortly after finishing university, as an Investments Apprentice / Investments Analyst. This graduate programme consisted of three, eight-month rotations, in three different teams. The managers allocated to her were Richard Greenwood, John Gardiner and Brenda Monaghan, respectively. Ms Nyeko alleged that the following occurred during the course of her employment:

• Ms Monaghan immediately refused, and failed to consider, her request for an adjustment to her working hours to allow her to take care of her disabled brother
• Ms Monaghan responded to her protected act by saying that she did not believe that there was any discrimination of any kind and closed down any further discussion
• Ms Torsney wrote to her expressly refusing to provide any support with the immigration process, despite allegedly knowing that she would be stranded abroad and unable to return to work
• She was invited to an investigation meeting, where it was claimed that she was not away on holiday and was in the UK as opposed to Uganda

Ms Nyeko had booked annual leave for early February 2020. On 20 January 2020, she asked Ms Monaghan to approve bringing her leave forward by 4 days, as she was no longer going on holiday but needed to fly home urgently for a family emergency. Ms Monaghan granted the request and they met again for a final meeting for Ms Nyekos leave. During this meeting, Ms Nyeko told Ms Monaghan that she was concerned that there was “unconscious bias” against her in the team, as she was not being included or being tasked with completing interesting work. She also said that she hoped to set up an internal Employee Resources Group with the goal of supporting black employees and offering unconscious bias training.

Immediately after the meeting, Ms Monaghan sent a draft email, to Frances Torsney to ask for her comments. In the draft email to the Claimant she said, “The team is well diversifie[d] with a number of women – arguably more than most real estate teams. I have not experienced/seen any bias on the team which has many cultural backgrounds including one Indian (Naveen).” Following this, Ms Nyeko started her annual leave on 27 January 2020 and flew to Uganda to visit her brother who was ill in hospital.

On 28 January 2020, the Claimant emailed Ms Monaghan and Ms Torsney saying that her bag, containing her residence card, had been stolen in the taxi on the way from the airport in Uganda. She asked how the Respondent might be able to support the process of applying for a replacement, as she needed her residence card to get back into the UK. Ms Torsney responded saying that the Respondent did not cover the costs of loss or replacement of a card and suggested that she claim on her travel insurance. Ms Torsney did, however, also forward the Claimants email to David Snowling, the Global Mobility Partner, who asked the Respondent’s immigration consultants for advice.

On 3 February 2020 Ms Nyeko sent Ms Torsney an email saying that she had been in touch with the Respondent’s immigration consultants and that she needed to apply for a re-entry visa. She told Ms Torsney that they had given her 2 options: a standard process taking 3 weeks, costing £154, and a fast-track process, which would take a week and would cost £400. She told her that her travel insurance would only pay £150 for replacing travel documents. Ms Torsney then forwarded the Claimant’s email to Ms Monaghan, among others, saying of the Claimant’s visa, “.. she is now hinder[ed] from returning to work without it and I am now particularly sensitive to any unconscious bias perceptions – I feel the best approach is to … fund the fast track.” Ms Torsney then emailed the Claimant confirming that the Respondent would fund the fast track re-entry visa.

On 10 February 2020, which would have been her first day back from leave, Ms Torsney sent an email to Ms Nyeko saying that the Respondent had been expecting her back at work and asking whether she had applied for her fast track visa. On 11 February 2020, Ms Palma sent the Claimant a standard form AWOL letter stating that failure to notify the Respondent of reasons for absence meant that the absence was treated as unauthorised and unpaid. Ms Nyeko responded saying that she expected to hear back on 12 February about the visa application and that her managers were all aware of her extenuating circumstances.

When Ms Nyeko finally returned to the office on 17 February 2020 she met with Ms Monaghan and Ms Torsney. There were no notes of this meeting but Ms Monaghan admitted that she and Ms Torsney challenged the accuracy of the Claimant’s account of when she travelled and that she was abroad. On 24 February 2020, Ms Nyeko was issued with a disciplinary investigation report and accompanying evidence. She was invited to a disciplinary hearing to consider 4 allegations of gross misconduct, for honesty and integrity relating to:

• Her holiday was initially booked inclusive to 13 February 2020
• The inconsistencies noted in her schedule of emails
• Her remote working was not verified by the IT department and there was no verification of work completed
• Her failure to provide documented confirmation of the original flight booking and re-booked flight details

Following this disciplinary meeting, Ms Daniel, the disciplinary process chair, met with the Claimant to inform her that following the outcome of the meeting, she would be summarily dismissed for gross misconduct. She confirmed this decision, in writing, on 6 March 2020. Mc Daniel denied that she had dismissed Ms Nyeko because of her race discrimination complaint, and said that given that all the allegations she was asked to make a finding on, she felt that upholding just one allegation would have been serious enough to constitute gross misconduct.

The Employment Tribunal decision

Victimisation

The Employment Tribunal decided that Ms Nyeko did a protected act during the meeting with Ms Monaghan on 22 January 2020 when she told her that there was unconscious bias against her. Although Ms Nyeko did not expressly state that she was being subjected to race discrimination the Tribunal found that from Ms Monaghan’s draft email to Ms Torsney it was clear that she understand that that was what Ms Nyeko was alluding to. Effectively, Ms Monaghan told a junior black employee that race discrimination did not exist on the team and dismissing an employee’s concerns in this way, without any undertaking to reflect or discuss the matter again, would result in a reasonable employee feeling disadvantaged in the workplace. Furthermore, the Tribunal found that the actions of Ms Monaghan and Ms Torsney during the meeting with Ms Nyeko on 17 February 2020 went beyond what was expected of an investigatory meeting. They were antagonistic and aggressive towards the Claimant and had clearly already decided that they would conduct a formal disciplinary investigation. The Tribunal concluded that this detrimental treatment was because of the protected act and therefore Ms Nyeko suffered victimisation.

Find out more about victimisation

Our lawyers’ view on Ms J Nyeko v AIG Asset Management (Europe) Ltd 

Rebekka Kreisz, paralegal at Redmans comments on this case: “This is clearly a very complex case and situations could have been handled differently by all parties involved. However, a concern raised by an employee should never be taken lightly especially in cases of racial discrimination. Ms Monaghan and Ms Torsney had a duty to consider the complaints brought forward by Ms Nyeko and they failed to do so, furthermore, they allowed their own feelings about the complaint to influence future interactions with the Claimant. One can hope that employers will take note of this judgement and it will be interesting to see what remedy the Employment Tribunal awarded during the hearing on 14 January 2021.”

The decision of the Employment Tribunal in Ms J Nyeko v AIG Asset Management (Europe) Ltd 2204324/2020 can be found here