By Neil Trainis

An employment tribunal has upheld a pharmacist’s claim that he suffered harassment relating to his race while working at Boots during a shift at the multiple in July 2020.

After a five-day hearing earlier this year, the tribunal ruled Samson Famojuro, who is of Nigerian origin and was working as the Responsible Pharmacist at Boots’ Silva Island Way branch in Wickford, Essex, on July 18, 2020, was subjected to treatment by the pre-registration pharmacy technician Emma Walker which related to his race. His claim for harassment relating to his race against Boots also succeeded.

The tribunal was critical of the “inconsistent and untruthful evidence” given by Walker and the pharmacy adviser Nicole Daley during the proceedings and said “their repeated allegations of aggression” against Famojuro “could reasonably lead us to the conclusion” that they “were stereotyping” him “as an aggressive black man, when all he was doing was seeking to assert his authority, in circumstances where they were undermining it.”

The tribunal dismissed "all other claims of harassment related to race and claims of direct race discrimination" but upheld Famojuro's claim for unfair constructive dismissal.

On July 18, Walker and Daley, who are both white, were working in the branch and both were in junior positions to Famojuro. Walker and Daley’s line manager, and the branch manager, was Amy Munson, who was not at work on that day and is also white.

As the pharmacist on duty that day, Famojuro was in charge and that meant he was able to delegate tasks to other members of staff in the branch. The tribunal heard that he asked Walker and Daley if they would help him file bagged items and prescriptions but Daley told him that filing away scripts was his responsibility, not hers or Walker’s. Famojuro replied that in his experience, the team helped the pharmacist to file.

The tribunal did not accept Daley’s claim that there was a “two-hour queue” of patients “outside the door” and ruled that Walker’s evidence was inconsistent. In her evidence, she said she and Daley “both had jobs to do, we had to get on with our own work” and they had a “discretion” as to whether or not do what Famojuro had asked them.

However, the tribunal heard that during an internal interview, Walker said Famojuro simply left the filing for them to do and they told him the pharmacist normally did the filing.

Then, as he filed the bagged items away, Famojuro realised he had inadvertently placed labels on the underside of half a dozen bags of the smallest size, which meant they would be harder to identify on the shelves. He asked Daley, who was at the computer, to generate fresh labels but she told him to file them as they were. Famojuro told her that if they were filed with the labels on the underside, they would not be visible but Daley did not reply and did not reprint the labels.

During cross-examination, she said she refused to do as Famojuro had asked because she was serving but the tribunal heard that if that was the case, Daley could have done it after she had finished serving but she did not.

Pharmacist was refused help – other evidence was inconsistent

The tribunal also heard that later that day, Walker and Daley refused to help Famojuro handle the prescription of an Asian patient after it had been sent to a different Boots branch. Famojuro made a note of what had happened and emailed it to his line manager Stephanie Hayes. 

The tribunal heard that Walker and Daley claimed they made handwritten statements on the same day, July 18, about what they said had happened but the tribunal said that was “unlikely.” It said Walker and Daley “probably” co-operated on their statements because “there were striking similarities between the two statements, both what was included and what was left out.”

The pair said in their witness statements that Munson asked them to write statements “with a view to making a complaint about” Famojuro and Munson also typed out a statement of her own and dated it July 18, 2020, although the tribunal heard “its language suggests it was not written on the day.” The Asian patient, who had her mother with her, came to the pharmacy to collect a prescription. However, Daley discovered it had been sent to Boots’ Basildon branch which was five miles away, which confused the patient.

The tribunal heard Walker’s evidence on this point was inconsistent. She told the tribunal that the patient had said she normally went to Basildon but neither Walker or Daley included that in their written statements. Instead, the tribunal heard that in her written statement, Walker had said “the patient did not seem to understand” and that she had to explain to the patient that at some point, she had been nominated to the Basildon branch “by the GP or the store.”

In their written statements, the tribunal said, Walker and Daley said Famojuro heard the discussion, came to the counter, “grabbed some paper, asked the patients for their name and address, did not say anything else but simply walked to the back of the store.”

Walker claimed Famojuro “was slamming things as I could hear noises and I then heard him speaking to the Basildon store on the telephone.” Daley said she and Famojuro did not speak but she claimed he was “storming around the pharmacy and seemed agitated.” This was inconsistent with Walker’s statement which contained nothing about Famojuro storming around the store. The tribunal said Daley’s account was untrue.

It found that Famojuro told the patient his branch could call the Basildon store and ask for the prescription to be released. At that point, Daley and Walker said it was usual for patients to make those calls, prompting Famojuro to repeat that the store could make the call. He asked Daley to make the call but she refused and “snapped” back at him “maybe you should call them up!”

The tribunal heard it was normal for a member of the pharmacy team to call another pharmacy to ask for a prescription to be released so it could be dispensed, although Walker told the tribunal that “sometimes,” patients must make the call “for reasons of confidentiality.” However, she did not mention that in her written statement.

During cross-examination, Daley let slip that Famojuro “had the hump because I wouldn’t call,” backing up the suggestion that he had asked her to make the call. Walker and Daley left the fact that he had asked the latter to call the Basildon branch, and that Daley refused, out of their written statements.

The tribunal said that confirmed “that they put their heads together about their evidence at each stage” and leaving that detail out made Famojuro’s “actions appear unreasonable, almost irrational.”

The tribunal found other inconsistencies and “untruths,” such as Walker’s claim during cross-examination that the patient was happy to phone Basildon and had even gone outside to make the call, before changing her evidence immediately by suggesting the patient “merely agreed to make the call.”

The tribunal also found Walker’s claim that Daley did not offer to make the call because there was a “two-hour queue” of customers outside was untrue.

Further inconsistencies in the evidence

There were further inconsistencies in Walker’s evidence. During cross-examination, Walker said Famojuro “was calm and professional up until the whole situation (with the customer), then he just flipped.” But in her witness statement, she said he had been “rude” earlier in the day.

When asked how Famojuro had been rude to her, she said that after a chat with him about a personal matter, he had a “look on his face’” which made her feel she “was somehow wrong.” Yet, when the tribunal pressed her on this point, Walker again said that before the exchange with the patient, “we were getting on…we were chatting, I told him about my (personal issue), he told me about his children…it was not until this whole situation which was blown out of context that he started to change.”

Famojuro called the Basildon store and the prescription was released and he asked Walker to dispense it. As she did so, she asked the patient and her mother to wait outside, at which point Daley told Famojuro: “After all, it was not my fault that the prescription was sent to the other store.” Walker replied: “No, it wasn’t.”

Famojuro checked the prescription, called the customers back into the store and gave it to them. The court heard that 20 minutes later, he “calmly approached” Daley to ask her for “a private word” in the staff room.

According to the tribunal, Daley exaggerated what had happened when she claimed Famojuro was at the back of the store and said: “Nicole get out here now!” However, that did not match with what she said in her internal interview when she claimed Famojuro told her to “come here now.” The court found he did not say either of those things.

Walker told the tribunal that Famojuro had attempted to speak to Daley privately but left that out of her written statement and criticised him for speaking to her in front of a customer. Daley had said in her witness statement that she was “genuinely uncomfortable about going into a private room with Mr Famojuro, given the way that he was speaking to me” and asked for a “witness.” She added: “I wouldn’t go out there with him as I felt extremely threatened by the way he shouted and I felt more comfortable speaking with him in front of Mrs Walker.”

Walker told the tribunal that Daley “had the right to say no. If a young girl does not want to go out the back with a man and wants there to be a witness, she has the right to do so…if she felt unsafe as a woman.” The tribunal heard there had been no suggestion previously that Famojuro’s sex “was a factor in this situation.”

Tribunal did not accept pharmacy adviser’s evidence

Walker told the court his “tone was very loud, aggressive” but she had not said that in her witness statement. The court said Walker “was willing to exaggerate her account” to Famojuro’s “disadvantage.” 

The tribunal also did not accept Daley’s evidence in her witness statement that Famojuro “was in close proximity to me, shouting that I needed to leave. Somebody shouting at you in such close proximity is always intimidating.”

Observing Famojuro as “a quietly-spoken, courteous person,” the tribunal said he was probably “firm (but) he was not aggressive and he did not shout,” although it accepted Daley, who would only speak to him in the pharmacy in front of Walker, started to cry when he asked her to leave for the rest of the day “because of the way she was behaving and her refusal to assist the customer earlier.” He was not confident she would comply with any more of his requests and he thought she had undermined him as the Responsible Pharmacist.

The tribunal said “there would have been different ways of handling the situation on both sides” but concluded that Walker, Daley and Munson “escalated the situation to the point where all three of them turned on” Famojuro.

Walker, the tribunal heard, had challenged Famojuro’s authority as the RP by telling him “he was out of order,” insisting Daley was not going to leave the pharmacy and suggesting that “if anyone was going to leave, it would be him.” She told him she and Daley would not work with him and told the court she was “protecting her colleague and friend.” The court also heard that Walker told Daley to phone Munson, which she did, but it did not accept Walker’s claim that Daley was “sobbing and incoherent.”

“We think it probable that there were moments during her call to Ms Munson where Ms Daley became upset and handed the phone to Mrs Walker,” the tribunal said in its judgement. It heard that shortly after, Walker locked the pharmacy door, leaving herself, Daley and Famojuro alone inside.

Then, as Walker and Daley talked to Munson on the phone, Famojuro made a phone call to Hayes in the staff room. She made a written note of her conversation with Famojuro but was not called to give evidence. However, the court said “her record of what” Famojuro “said to her on the day is consistent with his account to the tribunal.”

Pre-reg pharmacy technician was ‘disrespectful and unprofessional’

Walker conceded that she tried to interrupt his conversation with Hayes by accusing him of lying about Daley’s refusal to help the customer. The tribunal found that Famojuro had not lied or taken the situation out of context.

“Ms Daley had not done what she should have done,” it said, accepting Famojuro’s evidence that Walker was shouting at him in an attempt to be heard over the phone by Hayes.

Walker did not accept that she had done anything wrong but the court found she had followed Famojuro to the staff room where he was talking in private to Hayes and tried to interrupt his conversation by shouting over him. The tribunal said Walker was “disrespectful and unprofessional” and her behaviour was “hardly the action of someone who felt threatened and bullied” by Famojuro. When he returned to the store, Walker told him: “Samson, you need to leave, we are not ready to work with you any longer.”

Famojuro told her it was not her decision to make and tried to calm the situation but Walker told him: “That’s it. Amy (Munson) has asked you to leave. Hand over the CD (controlled drugs) keys and get out.” Famojuro told her it was not her place to ask him to leave.

The court heard that despite not being in the store, Munson instantly believed the allegations Walker had made about Famojuro and yelled at him down the phone that he was “an utter disgrace” and told him to leave the pharmacy without giving him a chance to present his side of the story.

“We note that Ms Munson had reached this decision without speaking” to Famojuro “or hearing his version of events,” the tribunal said in its judgement. It also said Walker’s insistence, given in her oral evidence, that Munson “tried several times to talk to him to no avail” was untrue. Munson, the court said, did not ask to speak to Famojuro before telling Walker to ask him to leave, although she did so later.

Claim pharmacist snatched phone away ‘aggressively’ was untrue

The tribunal said Daley’s statement at the time that Famojuro snatched her phone away “aggressively” as she tried to make a second call to Munson was not true. Munson, it heard, asked Daley to pass the phone to Famojuro which she did, but he said that because the phone was on speaker and Munson’s voice sounded loud, he tried to turn the volume down and accidentally disconnected it, which the court accepted.

“Ms Munson did not ask to speak to (Famojuro) privately, which we found surprising,” the tribunal said. Daley accepted that Munson shouted at Famojuro and Walker accepted Munson told him that he was “an utter disgrace for making Ms Daley cry” and asked him to leave the pharmacy.

The court said Munson “may have forgotten that if the responsible pharmacist leaves a store, it must close" but did not believe Walker’s claim in oral evidence that Famojuro’s voice was raised and that “he was shouting,” or her suggestion that she and her colleague “felt threatened as women” because “he was very aggressive, he was a bully.”

‘Quick to make fresh allegations when flaws were pointed out’

In its judgement, the tribunal said that throughout its proceedings, Famojuro was “quietly spoken, calm and courteous” and “willing to make concessions when appropriate” but described Walker and Daley as “volatile, defensive and quick to make fresh allegations when flaws in their original evidence were pointed out.”

The court also said there was “no dispute” that Walker threatened to call the police because, as she claimed, Famojuro was shouting at her, “towering over her” and made her flinch. The tribunal said it was “highly unlikely” that Famojuro had “towered over” Walker because he “is not physically intimidating” despite “a significant height difference between them.”

Insisting it did not believe he “shouted or was aggressive,” the tribunal said Walker and Daley exaggerated what had happened and said the former had “no justification” for threatening to call the police.

It was at that point that Famojuro returned to the staff room to make another call to Hayes. According to her notes, he told her “the situation had escalated and the doors were still locked to the public" and "the two dispensers had told him if he does not leave they will call the police.”

Famojuro also told Hayes he felt “incredibly unsafe” and “thought it best if he left.” As the pharmacy was shortly about to close, Hayes suggested to him that they “could trade through the door and keep away from each other” so patients could still get their medicines but he told her he felt “too unsafe for that,” so they agreed he would sign out as the RP and tell Walker and Daley it “meant they could not trade or hand out prescriptions.”

The tribunal heard that as he was about to leave the pharmacy, Walker, with Munson’s agreement, asked Famojuro to stay for the last half hour so it would not have to close, leading him to question why Walker had asked him to remain on the premises if he had behaved aggressively, as she alleged, and why he was later not disciplined and referred to the General Pharmaceutical Council. He insisted he was the one who pressed for an investigation.

Famojuro told Walker that she always had a reputation for being rude and she conceded that, in retaliation, she responded: “Samson, you have a bad reputation. You have been like this since I have known you.” Famojuro alleged that Daley said to him: “Surprising – a grown man with three kids behaving like this” and Walker replied “God knows how he got them.”

Daley initially denied that but during cross-examination agreed, saying: “I did say it was surprising a grown man with children would behave like this,” although she said she could not remember Walker’s remark even though Daley had said in her witness statement that “Mrs Walker may have said something along those lines.” In her oral testimony, Walker said she did not remember either statement.

Pair felt empowered to be as rude as they liked

Famojuro said he told Walker that not everyone felt that way about him and insisted a colleague offered him some cakes in the staff room. Famojuro claimed Walker replied: “I hope they are poisoned.” Walker denied that but the tribunal said it was “satisfied these things were said.”

“We think it very unlikely (Famojuro) would have chosen to make them up. By this stage, Mrs Walker and Ms Daley plainly felt empowered to be as rude as they liked to (Famojuro’s) face,” it said in its judgement.

The tribunal also found Walker had said to Daley earlier in the day that Famojuro talked too fast and she never understood a thing he said. “While it is right that (Famojuro) occasionally speaks quickly and is occasionally difficult to understand, it is not right to say that his speech is not generally understandable,” it said.

“We find that this remark was made by Mrs Walker to Ms Daley within (Famojuro’s) earshot and that it was disrespectful to speak about him in this way.”

The tribunal also heard Walker told Munson that Famojuro had left the pharmacy without signing out, which would have been a serious conduct issue if true. But the tribunal said Famojuro signed out in the register when the left, which Walker and Munson would have noticed had they checked.

Threat to call police was ‘very serious matter’ 

The tribunal noted that “for a black man to be reported to the police for aggression against two white women, in the absence of any third-party witnesses, is potentially a very serious matter indeed.”

The Pharmacists’ Defence Association, who represented Famojuro throughout the internal grievance processes and at the tribunal, said Boots took over four months to start an investigation and finalise a meeting date.

The tribunal said it was “particularly concerned by the inconsistent and untruthful evidence given by” Walker and Daley and added “their repeated allegations of aggression could reasonably lead us to the conclusion that Mrs Walker and Ms Daley were stereotyping (Famojuro) as an aggressive black man, when all he was doing was seeking to assert his authority, in circumstances where they were undermining it.” The tribunal heard that Munson would write a letter of apology to Famojuro.

The tribunal also said the “single most serious failure” in Boots’ investigation into the allegations “was the almost complete failure properly to investigate whether race was a factor in (Famojuro’s) treatment.” It said “there were other fundamental gaps in the investigation.”

A spokesperson at Boots said: “At Boots, we stand firmly against workplace harassment of any kind. We are reviewing the court’s findings and will reflect and take action on any learnings.”