Accusation of 'playing the race card' amounted to race discrimination

Posted by Ruth Christy on
A recent case demonstrates how even unconscious stereotyping has the potential to amount to race discrimination and underlines the need, as always, to make sure that managers are trained in the handling of complaints.

Although the comment made in this case was, according to the Employment Appeal Tribunal (EAT), "by no means grave", it still resulted in an employee winning his claim of race discrimination.

Mr Morris, who is black, was a software engineer at the Royal Bank of Scotland (RBS). During 2005 and 2006, tensions developed between him and his manager, Mr Tighe, and after a series of incidents, Mr Morris met with Mr Tighe's manager. Mr Morris alleged that, during the meeting, Mr Tighe's manager referred to him complaining about a "racial problem" in his relationship with Mr Tighe.

Mr Morris asserted that nothing in his complaint had related to race and he felt that Mr Tighe's manager had wrongly assumed he was "playing the race card". Mr Morris took offence at that suggestion and alleged that the comment was in itself an act of racism because such a comment would not have been made to a white employee raising the same complaint about a black manager.

The EAT accepted that the comment by Mr Tighe's manager was applying a racial stereotype (that a black employee complaining about his treatment by a white manager must or may be alleging race discrimination).

It also accepted that this stereotype would not have been applied if Mr Morris were white and Mr Tighe were black. This meant that the comment was made 'on racial grounds'. The EAT also accepted that this was less favourable treatment because it was "subtly but genuinely demeaning" and RBS had offered no adequate explanation for the comment.

Therefore the Employment Tribunal had been entitled to conclude, from the facts, that there was an act of discrimination.

However, the EAT also held that the subsequent 'incompetent' investigation into Mr Morris' grievance was not an act of discrimination.

Despite Mr Morris making clear during the grievance process that he was upset by the comment, it had been 'parked' by RBS and apparently never dealt with because Mr Morris had not formally raised it as a new, separate complaint.

The EAT was critical of this overly technical approach to the grievance investigation, but there was no evidence that those investigating would have been any more competent with a grievance from a white employee.

It may have been of small comfort to the employer in this case that the EAT expressed its view that the comment was not grave – it was a "single tactless remark, betraying an almost certainly unconscious racial stereotype of a rather subtle kind".

If Mr Morris had raised anything resembling a complaint about race, then asking him to clarify this would have been perfectly acceptable.

As he had not, the EAT understood why the comment upset Mr Morris but remarked that it would hope that a comment of this kind, even if technically amounting to discrimination, "would never form the subject of a tribunal claim and would be dealt with…by an informal apology or through the grievance procedure."

The case underlines how important it is to handle all complaints – whether or not they have become formal grievances – very carefully and tactfully.

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Ruth Christy
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