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"Playing the race card" criticism was direct discrimination

Posted on 25th March 2012
Case law

The employment tribunal and the EAT agreed that a senior manager was guilty of making a discriminatory statement which amounted to direct race discrimination.

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Royal Bank of Scotland plc v Morris UKEAT/0436/10

Background

The facts of this case involve a grievance raised by Mr M, who is black, about how he was being treated by his line manager, Mr T.

Mr M met with Mr T's line manager, Mr A, to discuss his complaints about Mr T. During this meeting Mr A suggested to Mr M that Mr T's conduct towards Mr M was linked with race. Mr M denied this and was upset by the suggestion he "was playing the race card".

It is important to note that Mr M had never alleged that Mr T's treatment of him was motivated by race.

The decision

The employment tribunal and the EAT agreed that Mr A, as a senior manager, was guilty of making a discriminatory statement which amounted to direct race discrimination. Mr M had said nothing to indicate that he was raising race as an issue, and Mr A would not have made the same suggestion if a white employee had complained about a black manager.

Mr A was guilty of making a tactless remark reflecting an almost certainly unconscious racial stereotype of a rather subtle kind.

Mr M's grievance was badly handled and in particular the investigation was criticised.

In practice

The EAT made it clear that if Mr M's complaint had included or suggested Mr T was racially motivated then it would have been acceptable for Mr A to seek clarification from Mr M about the scope or detail of it.

The EAT also hoped that most incidents of this sort should be capable of resolution by the giving of an apology or by using the employer's grievance procedure. In this case the respondent's process-driven approach of its elaborate grievance procedures "may have got in the way of a more humane and straightforward resolution." There is no doubt a lesson here - of course follow your internal procedures but make sure they do not prevent the right conclusions from being reached. Procedure over substance can easily result in the wrong decision being reached by the employer.

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