A workplace race discrimination case that captured public attention is headed for a full appeal. The Employment Appeal Tribunal (EAT) has ruled in Logo v Payone Gmbh & others, that certain controversial allegations, including those involving ‘blackface’, racially offensive remarks, and a disputed ‘pure blonde’ beer advert, will be re-examined in a full appeal hearing.
The trial occurred between 23 January 2023 and 03 February 2023 at the Watford Employment Tribunal. The judgment was published on 15 September 2023 and the Claimant (Mr Logo) filed the appeal soon afterwards.
The tribunal found that two, out of multiple allegations, constituted violations of the Equality Act 2010. These incidents were deemed to have created an intimidating, hostile, degrading, humiliating, and offensive environment for the Claimant. One incident involved Ms. Agnes Gaswindt, an employee of payments firm Payone GmbH, a subsidiary of the digital payments giant Worldline SA, dressing in blackface for a workplace Christmas party that occurred just three days into the claimant’s employment. The judgment found that Ms. Gaswindt did not intend to cause offense.
The other allegation involved comments made by Payone Key Account Manager Florian Risch during a workplace dinner, where he is found to have remarked about, “a black man fucking an animal,” amidst laughter. The employment tribunal concluded that these comments also breached the Equality Act 2010, leading to an intimidating, hostile, degrading, humiliating, and offensive environment for the Claimant, despite finding in favour of Risch’s lack of intent. Both incidents were deemed to be out of time, resulting in the failure of the Claimant’s claims solely on that basis.
Taking a look at the Blackface incident
Central to the claim is a November 2016 incident where a white employee, Ms. Gaswindt, attended a work-sanctioned Christmas Party in ‘blackface’, blacked-up paint. The Tribunal, while accepting her stated ignorance of potential offense at the time, concluded that the act nonetheless constituted race-related harassment against a Black co-worker present.
While the HR manager reportedly expressed discomfort upon witnessing Ms. Gaswindt’s costume and checked on the claimant’s well-being that same evening, no further action was taken despite the circulation of photos documenting the event. This inaction occurred during the claimant’s onboarding period shortly after the birth of their child. The company’s later claim of being unaware of the incident until formal proceedings raises questions about their internal communication protocols concerning such matters.
The tribunal found that,
“137. We have found this a difficult question to decide because essentially we are assessing whether we accept Miss Ganswindt’s evidence that she was simply unaware how likely it was that dressing in black face would cause offence. This requires us not only to think whether someone would be so unaware in 2016 but would be so unaware if they lived and worked in Germany. Miss Ganswindt was born in Poland but had lived in Germany for over half of her life.”
And the judgment also found that that,
“138. We accept her evidence that she choice the costume before she met the claimant so she was not aware that he was Black or that he would be present. We therefore accept that she cannot have intended to upset him personally. The possible numbers of Black or minority ethnic attendees (or BAME) at that event seems likely to have been low; the evidence was that Black and minority ethnic attendees were in single figures. We need to make a judgment about whether Miss Ganswindt intended to cause the harassing effect, intended to create an intimidating hostile, degrading, humiliating or offensive environment for him.”
The case highlights the complexities of workplace discrimination and societal awareness, raising important questions about corporate responsibility for cultivating an inclusive environment and the need for proactive diversity training to prevent similar incidents. Ms Gaswindt told the tribunal that “she had received no diversity training no inclusion training and that would have given her an awareness about how someone in the claimant’s perspective might have felt.”
At the 2023 date of the trial it appeared that Payone had not engaged it’s staff in any training.
Adding further complexity, the judgment also questioned the credibility of the claimant’s manager’s testimony. Ms Fischer stated that she had been present at the event but changed her story on the day of testimony, telling the tribunal she had confused her attendance in person, with various photographs of the event that had been circulated in the weeks and months after the event. The tribunal found in Ms Fischer’s favour, although the claimant had claimed during the her testimony was evidence of her unconscious bias in coming to the aide of a colleague purely on racial grounds and was example of unconscious racial bias.
The Florian Rish “joke”
Mr Risch, a former employee of Payone, had a belated leaving party thrown by Mr. Logo and his team. The claimant’s position was that Mr. Risch felt emboldened to tell the offensive joke because he had already left the company. However, a twist emerged – shortly after, Worldline SA acquired a majority share in Payone, making Mr Risch an employee of Payone again. This allowed the Claimant to include him in the legal proceedings as a current employee of the Payone GmbH company.
Mr Risch had denied making the comment “black man fucking a rabbit” in the Payone GmbH April 2021 defence to the allegations. His December 2022 witness statement (just weeks before the January 2023 trial) at paragraph 16, Mr Risch stated he could not remember even speaking to the Claimant and denied making any “joke” about a black man.
Mr. Risch initially denied making the offensive remark. However, moments before giving evidence at the trial, he changed his story, claiming that he was suddenly reminded of the incident by a colleague.
The Tribunal judgment stated that it wrestled with conflicting recollections and the complex nature of intent. It ultimately concluded that the claimant’s horrifying accusation was likely true. The judgment stated,
“252. The claimant’s statement evidence about this incident was contained in para 164 onwards. He describes the table and who was sitting in various spaces including where Mr Risch was sitting. He describes much but not all of the conversation being in German and then an incident where Mr Risch was conversing in German with a named colleague and then burst out in loud laughter. The claimant then alleges that “I looked over to him and stated words to the effect of ‘that must have been funny’ he stated the joke would be difficult to translate in English, but it was about “black man fucking a rabbit”. The claimant stated that he believed that this was something Mr Risch would genuinely be thought to be amusing but that the colleague looked alarmed and apologized later. This is a considerable amount of extra detail compared with the original allegation.”
And (squared brackets added),
“254. When cross examined about it he [Florian Risch] said “I cannot image that this has ended up in bursting laughter. More shocking.” He did however accept that the words alleged by the claimant were stated that night in German or in English.”
And,
“ 255. We accept that words alleged were probably used. Mr Risch clearly struggled with his recall of this event. His initial recollection had simply been that nothing happened. Naturally, we expect people to come to Tribunal and, in the words of the oath or affirmation, tell “the truth, the whole truth and nothing but the truth” but we think it is to his credit that he volunteered this further information. His explanation for late recall is plausible. The first time a comment it heard is the most memorable occasion – for the claimant, that would have been at this event, for Mr Risch it would have been when the story was first relayed to him. If a long passage of time occurs before the individual has to remember the occasion, then their recall is likely to be worse, in our experience. We think that the event in June 2019 was therefore more likely to be memorable to the claimant than to Mr Risch. It is not clear, even now, how much Mr Risch remembers himself rather than accepts on the basis of being reminded by the colleague.”
And finally,
“259. We consider the claimants evidence at para.165 that Mr Risch laughed. We think the claimant inferred that a joke had been told from the laughter, but that description is not necessarily inconsistent with the R1 witnesses denying that they were telling a joke. People can laugh for more than one reason and Mr Risch now giving evidence long after the event is doing his best, but he is hampered by the difficulty of recalling it. We accept that there probably was laughter.”
Whilst Payone partly admitted to the Blackface incident, the payments firm amongst Europe’s largest, refused to condemn the comment by Mr Risch and defended the allegation at trial citing that the Claimant did not consider the context.
The Tribunal’s judgment touched upon the inherent power dynamics at play during social gatherings. They acknowledged the Claimant’s vulnerable position, already feeling degraded by the offensive language, and the unrealistic expectation to immediately confront the remark. This highlights the critical need for work colleagues particularly allies to take responsibility in challenging inappropriate behaviour, even in less formal workplace settings.
This case has rightfully gained public attention, prompting discussions about the insidious and often subtle forms that racism can take place. The Tribunal’s findings emphasise a core truth: words carry immense weight. Even when denied as lacking ill-intent, language can leave lasting harm and erode trust within diverse teams. The case highlights an ongoing need for individuals, colleagues, and organisations to actively prioritise and cultivate truly inclusive and safe environments for every employee.
The Pure Blonde Whatsapp video – Payone GmbH defending white supremacist ideology? or not?
The advertisement, titled “Pure Blonde,” sparked outrage. The Claimant a Black, British employee, who viewed it as a harrassing promotion of white supremacist idealogy. This ad, featuring a cast solely of white, blonde people in a seemingly idyllic setting, sparked claims of racial harassment. The Claimant perceived the ad, which was shared without context in a work WhatsApp group comprised of roughly 14 members (all except for the claimant being white), as promoting an all-white utopia that excluded people of colour.
The WhatsApp Group was later disbanded by the senior management at Payone.
The employer, through Mr. Schrader, the employee who posted the advert, argued that any such connection was unintentional. He maintained that the focus was simply a light-hearted play-on-words with the beer’s name.
The Tribunal itself was divided on the matter. While the majority saw no racial link whatsoever, a minority acknowledged a potential, albeit tenuous, connection due to the traditional association of whiteness with the term “blonde.” Nevertheless, there was unanimous agreement that Mr. Schrader did not intend to cause any offense with his post. The following are excerpts from the judgment [emphasis added],
“346. When Mr Schrader was cross examined about it he said that he could not see that someone who was not white could be offended by this advert and if he had thought that he definitely would not have shared it. While not denying that there was a Nazi ideology of the Aryan race of predominantly blonde people, Mr Schrader said it was simply the name of a beer and he had interpreted the message of the advert completely differently but did not see any links to the holocaust or African minorities in the advertisement.”
“347. The claimant suggested that Mr Schrader did not answer the question about whether he was comfortable showing it to holocaust victim for example, but we consider that he was open and honest in his answers and accept that he would not have posted it if he had thought people would be offended. The claimant said in his evidence that he had already had experience that Mr Schrader had made a comment (see para.270 above), but we have found that to be based on a misunderstanding. We accept his evidence that he considered the advert to be humorous and did not see any potential for offence.”
At the heart of the Claimant’s appeal lies the question of whether intent should take precedence over the actual impact an action has. The Tribunal ruled that the claimant’s interpretation of the advertisement was unreasonable and did not rise to the level of harassment, and that the Claimant was more concerned that the video was circulated within almost all German group; something the Claimant denied as “ridiculous” when it was put to him by Payone’s counsel.
The issue underscores the importance of fostering greater cultural awareness, even where malicious intent is pleaded as being absent. It stands as a reminder that language and imagery have power, and while humour may be contended as the intended goal, responsibility lies with all of us to be mindful of how our communications may reverberate across racial and cultural lines within the workplace.
Permission to Appeal Application
On 9th May 2024, following a hearing dated 1st May 2024 the Employment Appeal Tribunal (EAT) issued a decision allowing key aspects of the original ruling to be challenged at a full appeal hearing. You can find the decision below and Loopline Media will report on the outcome of that appeal which is to be listed for a full day to include judgment.
This article aims to promote open justice principles by discussing a significant employment law case. It primarily references the 96-page judgment issued by the Watford Employment Tribunal on September 15, 2023. Please note that certain injunctions may limit the scope of information that can be shared about witness statements and other evidence referenced within the judgment. This article adheres to legal restrictions and focuses on publicly available information within the judgment itself. This article is authored by the claimant in the case, aiming to provide an informative exploration of the Tribunal’s judgment in the public interest.
