Unconscious racial stereotyping can be race discrimination
The recent Employment Appeal Tribunal decision in Royal Bank of Scotland v Morris is an example of how ‘stereotyping’ can result in a finding of direct discrimination.
Direct race discrimination (less favourable treatment because of a person’s race) is currently prohibited by section 13 of the Equality Act 2010.
Prior to October 2010 and at the relevant time to this case, direct race discrimination was prohibited by the Race Relations Act 1976 (“RRA”) and was defined as less favourable treatment on racial grounds.
In discrimination claims, where there is a prima facie case of discrimination, meaning facts from which it could be concluded discrimination has occurred in the absence of another explanation, the burden of proof lies with the employer/respondent to show that its actions were not discriminatory.
The Claimant is a black man of Afro-Caribbean origin. He worked for the Respondent as a software engineer. Following a series of incidents between the Claimant and his manager in early 2006, the Claimant requested a meeting with his manager’s superior (Mr A). At this meeting it was wrongly assumed the Claimant’s complaint was based on his race. However, the Claimant had not said anything to suggest there was a racial aspect to his complaint and denied this was the case. Nonetheless the phrase “playing the race card” was contained in the Claimant’s personnel file in a record of this meeting.
The Claimant went on sick leave shortly after this meeting (due to amongst other things stress and anxiety) and did not return to work. During his sick leave he raised a grievance focused on his manger’s conduct but which made reference to the comments of Mr A at their meeting. RBS did not deal with the latter issue advising the claimant that if he wished to make a complaint about someone other than his manager he would need to raise a separate grievance. The claimant’s grievance was not upheld. The claimant subsequently resigned, there having been issues about him transferring to a different part of the business when he returned to work, and claimed unfair (constructive) dismissal, race and disability discrimination.
The Employment Tribunal (ET) found that the claimant had been unfairly dismissed and unlawfully discriminated against.
The Employment Appeal Tribunal (EAT) upheld, in an appeal relating to the discrimination aspects of the claim only, the ET’s decision that the Claimant had suffered direct discrimination because of his race. The EAT did not uphold the ET’s disability discrimination finding.
The EAT found that the conduct of Mr A was based on an assumption or stereotype, that a “black employee complaining about his treatment by a white colleague… must, or at least may, be alleging race discrimination” The EAT concluded, on the ET’s finding of facts, that Mr A’s comments were on racial grounds and therefore discriminatory. The EAT found that Mr A would not have treated a white employee complaining about a black manager in the same way, and whilst the EAT acknowledged that they did not have any evidence to support this assertion they considered it was an inference of a kind that could be properly drawn in this case.
Whilst members of ethnic minorities are generally regarded as the principal victims of and therefore those who complain about racial discrimination, managers should not automatically assume that a complaint made by such an employee is racially motivated.
The EAT commented, in this case, that if Mr A had attempted to clarify the nature of the complaint (i.e. was it related to the claimant’s race) that would have been ‘wholly unobjectionable’ Clarification should therefore be sought at an early stage in a grievance where there is uncertainty around whether there is a discriminatory element to it.
A finding of race discrimination of this kind, which the EAT described as “by no means grave” and an “unconscious racial stereotype of a rather subtle kind”, is unlikely to attract a high injury to feeling award and the costs of defending such a claim would far outweigh such an award. Further, the EAT indicated that in the great majority of cases it was hoped that a comment of the kind made by Mr A would not form the subject of an ET claim and could be dealt with informally. Indeed it was critical of RBS’ grievance procedure, which it said “may have got in the way of a more humane and straightforward resolution”
The EAT also confirmed, in relation to the disability discrimination finding of the ET, which it did not uphold, that where a disability is a mental impairment such as depression the issues will often be too subtle for the ET to make proper findings without expert assistance. In this case the only medical evidence was limited to occupational health reports and a report from a psychiatric registrar.