Suggestion Employee was “Playing the Race Card” was Direct Race Discrimination

The EAT has held that a senior manager discriminated against an employee on grounds of race when he wrongly suggested that a black employee’s complaint about his white manager was connected with race.  

In Royal Bank of Scotland v Morris, M made a complaint about his manager, T, to a senior manager, A.  During a meeting to discuss the complaint, A suggested that M’s complaint was connected with race.  M resented the suggestion that he was “playing the race card” (his words, not the manager's) and the fact that A did not treat the matter as a straightforward complaint by one employee against another, to be treated on its merits.  He later complained that the manager’s suggestion amounted to race discrimination.

The employment tribunal and EAT agreed.  M had said nothing which suggested he was raising race as an issue.  A acted as he did because of a stereotypical assumption that a black employee complaining about a white manager must, or at least may, be alleging race discrimination and this amounted to direct race discrimination. 

The decision in this case demonstrates that managers dealing with grievances need to be careful when seeking to establish the precise nature of the grievance.  The manager in this case made the mistake of considering whether there might be a complaint of race discrimination involved when the employee had said nothing which indicated this to be the case.  He was therefore found to have made a stereotypical assumption based on race.  The EAT recognised that if M had said anything, or there was anything in the circumstances, which suggested that he might be alleging a racial motivation on T’s part, an attempt to clarify what he was saying would have been “wholly unobjectionable” – so a manager is entitled to seek to clarify whether a complaint of race discrimination is being made, but only if the employee says something or there is something in the circumstances that indicates that there might be a complaint of race discrimination.

The EAT also commented that A’s comment was, as acts of discrimination go, by no means grave and suggested that it should not attract a large compensation award.  It also hoped that most incidents of this nature should be capable of being resolved by way of an apology or through the employer’s grievance procedure.