Kenbata v Westminster City Council – An ‘unbeleafable’ tale of discrimination by pot plant

21st June 2017 | Written by Amy White

Just when you thought employment law couldn’t get any stranger, a little gem (excuse the pun…) like this comes along.

In December 2013, Benyam Kenbata was employed by Westminster City Council in the role of Capital Programme Manager. In this role he worked with a team including a Support Officer by the name of Ms Denby-Mann.

Ms Denby-Mann’s desk was situated in front of Mr Kenbata’s. At some point between December 2013 and April 2014, Ms Denby-Mann placed a pot plant on her desk. Over time the plant grew until it reached a size that the Employment Appeal Tribunal (EAT) later referred to as ‘larger than might be expected on an office desk’.

In April 2014, Mr Kenbata sent an email to his head of department alleging, amongst other things, that the presence of Ms Denby-Mann’s pot plant constituted racial segregation. When asked how a pot plant placed on a colleague’s desk could be said to amount to racial segregation, Mr Kenbata stated that, while he could not be certain of his allegation, the plant nevertheless made it difficult for him to hold conversations with his colleagues and interfered with his line of sight.

At this point HR intervened and a number of conversations took place, including one which occurred in the open plan office Mr Kenbata shared with Ms Denby-Mann. Following these meetings, the HR department reached the conclusion that there was nothing more sinister going on than the plant having outgrown its surroundings and being in need of a good pruning.

It would seem however, that this conclusion did not satisfy Mr Kenbata. Mr Kenbata left the Council in July 2014 and subsequently lodged a claim with the Employment Tribunal in which he alleged 29 different complaints, many of which stemmed back to the pot plant, including direct discrimination, racial harassment and victimisation.

At the Tribunal hearing in 2015, all but one of Mr Kenbata’s claims were dismissed. The only concession made by the Tribunal was that the meeting about Mr Kenbata’s complaint which took place in an open plan office amounted to an act of victimisation, as it should have been dealt with confidentially. In its conclusions, the Tribunal held that the positioning of a pot plant on Ms Denby-Mann’s desk ‘was not an act of direct discrimination nor harassment directed towards the claimant’.

Having incurred legal fees in excess of £50,000 defending Mr Kenbata’s claim, the Council sought a costs order against Mr Kenbata in the sum of £10,000. Costs awards are, on the whole, unusual in the Employment Tribunal, but in this instance the Tribunal was prepared to grant one in the Council’s favour on the basis that Mr Kenbata had acted in bad faith in bringing the discrimination complaint.

Undeterred, Mr Kenbata appealed to the EAT. On review, the EAT ruled that the original Tribunal had failed to address the harassment aspects of Mr Kenbata’s complaint and remitted the claim back for reconsideration. The outcome of that reconsideration is awaited.

This case is a classic example of the problem perception can cause within the workplace. An action that one party might regard as entirely innocuous can be seen, by another, to be pointed, offensive and even, at the extreme, discriminatory.

If an employee comes to you with a complaint about a behaviour that seems, to you, to be entirely harmless, don’t allow your point of view to get in the way of following a proper process. While the behaviour might not, to your mind, be problematic, treat the complaint privately, consistently and in accordance with relevant policies and procedures.

If you would like further information or advice in connection with discrimination, harassment and victimisation, please contact Amy White on 01825 744489, email amywhite@rixandkay.co.uk or Miranda Martin on 01273 225603, email mirandamartin@rixandkay.co.uk.