Rico Quitongo v Airdrieonians Football Club Limited & Anor

Conduct arising from an investigation into an allegation of racist abuse is not, without more, conduct related to race for the purposes of harassment under Equality Act 2010. The tribunal must examine the respondent’s own conduct and motivation. It must also make sufficient findings about what was actually said or done before assessing the statutory elements of harassment.

An allegation of a breach of the Act remains a protected act unless it was both false and made in bad faith. A respondent’s subjective belief that the allegation was untrue cannot, without a clear finding of bad faith, sever the protected act from a detriment imposed because of its contents.

The appellant, a professional footballer, reported an allegation that a supporter had racially abused him during a match. The first respondent investigated, under the second respondent’s oversight. Dissatisfied with the investigation’s outcome and the respondents’ subsequent conduct, the appellant brought claims of harassment and victimisation under the Equality Act 2010.

An Employment Tribunal at Glasgow dismissed all claims in a reserved judgment dated 23 November 2022. The appellant appealed one victimisation claim and five discrete harassment claims. The central issues were whether the tribunal had correctly applied the statutory tests and made findings adequate to support its conclusions.

1. Appeal allowed in part. The Employment Appeal Tribunal set aside the dismissal of the victimisation claim and one harassment claim. It refused the appeal on the remaining four harassment grounds.

2. On victimisation, the tribunal had accepted that the agent’s text alleging breaches of the Equality Act 2010 was a protected act and that the subsequent refusal to communicate with the agent was a detriment. Its conclusion that the protected act was no part of the reason for that detriment was irreconcilable with its reasoning. It had wrongly treated the second respondent’s belief that the allegations were false as severable from the protected act.

   Under section 27(3), protection is lost only where an allegation is both false and made in bad faith. No clear and unequivocal finding of bad faith, with reasons, had been made. The respondents’ subjective view of the allegations’ truth was therefore irrelevant. On the findings made, the only possible conclusion was that the first respondent victimised the appellant by refusing to communicate with his agent because of the text’s contents.

3. For harassment, section 26 required focus on the respondents’ own conduct. The fact that an investigation concerned an allegation of racist abuse did not itself make every aspect of its conduct related to race. There had to be something in the motivation for the conduct that related to the protected characteristic.

4. The tribunal permissibly found that refusing consent for an interview and referring to the contractual consequence of proceeding without consent were directed to protecting the investigation, not race. It also permissibly found that the 5 October meeting was held to explain the investigation’s outcome and move matters forward, and that later communications did not amount to improper pressure. The tribunal was entitled to treat the requested written letter, rather than the earlier leave decision, as the only harassment allegation before it and to find that its sending was not unwanted conduct.

5. However, the tribunal made no finding as to what the second respondent actually said when discussing the suggestion that the appellant was using the racist incident for publicity. It could not therefore assess whether any conduct was related to race, its purpose, or its effect. That harassment claim was remitted to the same tribunal for findings, determination and, if necessary, remedy.

6. The remedy issue on the successful victimisation claim was remitted to the same tribunal.

• Employment Appeal Tribunal: Allowed the appeal on victimisation and one harassment ground: [2024] EAT 201.
• Employment Tribunal, Glasgow: Dismissed all claims in a reserved judgment dated 23 November 2022. Its dismissal was set aside only as to the successful appeal grounds.