Background
Tolulope Fayokun, who was born and raised in Nigeria, worked for Johnson and Johnson Medical Limited as a Senior Manager. Her manager, Alessandra Toro, used a generic Nigerian working-style profile when managing her and discussed it with her after a work trip in April 2018.
The Employment Tribunal dismissed most of Ms Fayokun’s claims but upheld three related claims of direct race discrimination. It found that Ms Toro had profiled Ms Fayokun using a Nigerian profile containing “lazy stereotypes”, used it in managing her, and linked workplace difficulties to her “Nigerian traits”. Although the claims were late, the Tribunal extended time on a just and equitable basis.
The Court’s Holding
The Employment Appeal Tribunal dismissed Johnson and Johnson’s challenge to the discrimination findings. The Tribunal had made findings open to it on the evidence and had given adequate reasons. It was entitled to conclude that assigning Ms Fayokun a generic Nigerian profile, rather than a personal profile, was treatment because of race.
The EAT also held that the Tribunal was not required to construct a hypothetical comparator. It could focus on the reason for the treatment, and it had considered Ms Toro’s stated benign purpose of improving communication. Good intentions did not prevent the treatment from being directly discriminatory.
However, the EAT allowed the appeal on limitation. The Tribunal had failed to consider the length of the delay in bringing the claims and the reasons for it, both ordinarily relevant to a just and equitable extension. That issue was remitted to the same Tribunal, with both parties permitted to call evidence.
Key Takeaways
- Using a generic national profile containing stereotypes to manage an employee can amount to direct race discrimination.
- A tribunal need not identify a hypothetical comparator if it properly addresses why the employee received the treatment.
- On a just and equitable extension of time, tribunals must consider the extent of the delay and any reasons for it.
Why It Matters
The decision confirms that cultural-management tools do not become lawful merely because they are intended to improve communication. Where an employee is singled out by reference to nationality or national origins, the true reason for the treatment remains central.
It also reinforces that meritorious claims and lack of prejudice to an employer do not alone justify extending statutory time limits. Tribunals must weigh those matters against the delay and its explanation.