In Royal Bank of Scotland plc v Morris, the Employment Appeal Tribunal (EAT) had to consider whether a manager’s suggestion that an employee was ‘playing the race card’ by making a complaint about a colleague amounted to race discrimination.
Morris worked as a software engineer at RBS. He had a tense relationship with his supervisor (T), and after a number of incidents, met with T’s manager, A, to discuss T’s conduct. At the meeting, A made comments to the effect that Morris was alleging that T’s conduct was race related. Morris denied the suggestion that he was ‘playing the race card’. Morris lodged a grievance based largely on T’s conduct, but also A’s race related comments. The grievance was rejected by RBS, however the racial aspect of A’s comments was not addressed. Eventually, Morris resigned and brought several complaints in the Tribunal.
The EAT upheld the Tribunal’s finding that A had identified Morris’ complaint as a racial issue rather than a typical complaint, on the basis of a stereotype that a black employee lodging a grievance about the conduct of a colleague must be alleging race discrimination. This was ‘subtly but genuinely demeaning’, and constituted direct race discrimination. However, whilst the EAT acknowledged that the investigation by RBS had been incompetent, it rejected Morris’ complaint that RBS’ unreasonable failure to investigate a complaint of race discrimination of itself constituted race discrimination.
Impact for employers
- When making his complaint, had Morris suggested that there was a race element to the alleged conduct then it would have been ‘wholly unobjectionable’ for A to seek clarification on the issue. Employers should ensure that employees dealing with disciplinary matters are aware of the need for objectivity of approach.
- Equally, the EAT stated that A’s comments, which betrayed ‘an almost certainly unconscious racial stereotype of a rather subtle kind’ were ‘as acts of discrimination go, by no means grave’. Employers should consider that incidents of this kind may be capable of being resolved by the more straightforward measure of a formal apology, or through their grievance process.