By Sara Meyer & Alex Lock
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Published 09 September 2026
The EAT has upheld an employment tribunal's decision that an employer had directly discriminated against an employee of Nigerian national origin when her manager attributed a generic Nigerian working profile to her and used that profile during management discussions. However, the EAT allowed the employer's appeal against the tribunal's decision to grant a just and equitable extension of time, holding that the tribunal had failed properly to consider the extent of and reasons for the employee's delay in bringing her claims.
Facts
Ms Fayokun was born and raised in Nigeria, and worked there for some years before moving to the UK in 2007. She began working for Johnson and Johnson Medical Ltd (JJM) in April 2017 and initially had a good relationship with her manager, Ms Toro.
After difficulties arose in their working relationship, Ms Toro carried out a cultural profiling exercise using materials relating to Nigerian working styles, and aligned Ms Fayokun with a generic Nigerian profile. When discussing that profile with Ms Fayokun during management meetings in April and May 2018, Ms Toro referred to Ms Fayokun's "Nigerian traits" and suggested that they were the reason why colleagues had difficulty working with her.
In June 2018, Ms Fayokun was assigned to a different line manager. She raised a grievance in August 2018 alleging that Ms Toro had racially abused her. In September 2018, JJM rejected her grievance. Ms Fayokun then went off sick with work-related stress. While off sick, she commenced Acas early conciliation (EC). The EC period ended on 16 June 2019, and Ms Fayokun presented various claims to the employment tribunal on 17 July 2019. Ms Fayokun remained off sick, and was ultimately dismissed for capability in January 2020.
The employment tribunal dismissed all of Ms Fayokun's claims, except her claim for race discrimination, which it upheld in relation to the following three allegations:
- Ms Fayokun had been subjected to a profiling exercise based on a generic Nigerian profile which included lazy stereotypes
- The profiling exercise was used in discussions with her concerning how she was being managed
- Comments were made linking JJM's treatment of her to stereotypical Nigerian traits
The discrimination claim was out of time, but the tribunal decided that it would be just and equitable to extend time. JJM appealed both against the findings of race discrimination and the decision to extend time.
EAT decision
The EAT dismissed the appeal against the findings of race discrimination. It held that the tribunal had been entitled to find that the profiling exercise, comments about 'Nigerian traits', and reliance on those traits when discussing workplace relationships amounted to direct race discrimination.
The tribunal's conclusions in this regard were not perverse, and it had given adequate reasons for its factual findings. The fact that the tribunal had not identified a hypothetical comparator did not indicate an error of law; it had been entitled to focus on the reasons why Ms Fayokun was treated as she was. Ms Fayokun was the only employee to have a generic profile attributed to her. The tribunal had expressly considered Ms Toro's stated intentions for conducting the profiling exercise, namely to enable Ms Toro to flex her own working style to better suit that of Ms Fayokun. However, claiming to have good intentions when conducting the profiling was not the same as saying that the profiling was not done because of Ms Fayokun's race. An employer who discriminates with good intentions nonetheless remains liable for the discrimination in question.
However, the EAT allowed JJM's appeal on the time point. Although the tribunal had considered the strength of the discrimination claims and the absence of prejudice to JJM, it had erred by failing to consider how out of time the relevant claims were, why this was so, and the presence or absence of a good reason for the delay. Those factors will almost always be relevant when deciding whether it is just and equitable to extend time. The EAT therefore remitted the question of extension of time to the same tribunal, with both parties permitted to adduce further evidence on that issue.
What does this mean for employers?
The decision in this case sounds a note of caution for employers that well-intentioned cultural awareness initiatives can still constitute direct race discrimination if they rely on stereotypes or attribute generalised national characteristics to a specific employee. As the EAT acknowledged, benign motives do not prevent liability where the treatment is because of race. Employers should therefore ensure that managers focus on individual behaviours and provide evidence-based feedback rather than basing any assessments on generic cultural or national profiles.
It also provides some helpful guidance on out of time claims and the just and equitable extension of time, which sometimes appears to be easily granted.
Johnson and Johnson Medical Ltd v Tolulope Fayokun
