As an Employment Solicitor, I deal with multiple discrimination claims. Personally, I find the majority of discrimination claims fascinating. Why? Because they are so varied and can be brought due to behaviour linked (in almost any way) to an individual’s gender, age, belief or religion, race, sexual orientation, disability, marriage or civil partnership, pregnancy or nationality.
As you’ll have no doubt spotted from the unusual title, it’s that last one, nationality, which I want to explore today.
Before we get into the legal angle, let’s quickly look at the facts. A waiter is reported to have taken action against a restaurant in Vancouver for his dismissal last year. His former employer stated that his dismissal was due to his “aggressive tone and nature” with colleagues further to previous verbal warnings as to his “combative and aggressive” behaviour towards fellow staff.
The waiter, Mr Guillaume Rey, has argued that his dismissal (and the reasoning behind it) is discriminatory because French culture “tends to be more direct and expressive”. Yes, that’s right, his core argument is that his confrontational behaviour should have been overlooked and/or condoned simply because he was French.
Now, in the Canadian courts, Mr Rey is bringing this in conjunction with human rights arguments. However, for the purposes of this blog, let’s explore whether Mr Rey would have an argument in an Employment Tribunal.
As above, you can bring a discrimination claim against an employer for discrimination linked to your nationality and this includes discrimination inherent within a dismissal. However, our discrimination laws mainly look to ensure equal treatment of all nationalities.
This is an issue with Mr Rey because he is effectively arguing that French waiters should be able to act in a more confrontational manner than other nationalities. This is contrary to the purpose of our discrimination laws which, in effect, state that all individuals should be treated equally in relation to alleged poor behaviour or misconduct regardless of nationality. Mr Rey, therefore, is unlikely to have much of a case.
Obviously, this is a brief, simple analysis but let’s look at the alternative. Let’s say that Mr Rey was dismissed by a restaurant in Liverpool (rather than Vancouver) and brought his claim to an Employment Tribunal and was successful in proving discrimination. The outcome would be that employers would have to directly consider the effects of and culture inherent within that person’s nationality on the alleged poor performance or misconduct before taking action. In doing so, the employer is likely to have to resort to stereotyping as to which countries are more likely to produce individuals who are “more direct and expressive” in nature and, by acting in this way, they would effectively breach the main purpose of our discrimination laws which is to treat person equally by taking nationality (and other protected characteristics) out of the equation when making decisions!
So, regardless of what happens in the Canadian courts, I wouldn’t expect to see any successful claims over here by waiters who claim that their nationality excludes them from rude or aggressive behaviour. Pas terrible!