If you’re dealing with racism at work, you’re not alone.  According to Financial News, race discrimination claims to Employment Tribunals rose by 48% in the UK in 2020. In this article, we look at two real life examples of direct race discrimination claims. We explore which arguments were successful, which failed, and why.

What is racial discrimination?

There are 4 types of race discrimination:

• direct race discrimination
• indirect race discrimination
• harassment related to race
• victimisation because of raising or supporting a concern about race.
  

In this article, we deal with direct race discrimination, which means being treated less favourably because of your race, which is a “protected characteristic”. Learn more about the 9 protected characteristics.

These days, direct racial discrimination in the workplace is often less obvious -- it’s unlikely that you’ll be told outright, ‘you’re not receiving benefit X because you’re of race Y’. It’s more likely that an event, or series of events, will happen which suggest racial discrimination or unconscious bias.

That causes a difficulty of proving discrimination or unconscious bias. In both of these examples, we’ll show how proof makes the difference in winning or losing a claim.

Example 1: a direct race discrimination case where a white staff member was treated more favourably

What happened

Balin was a security guard for a company which provided services to a large department store in London. One day, Balin was given door opening duty with another security guard.  The other security guard was then called to a different task so a supervisor, Fraser, stepped in. The department store had a very specific door opening protocol, which was not properly completed. As a result, customers were unable to enter the store.

Balin already had 2 written warnings on his file for (1) failing to report for 2 shifts and (2) sitting down at work when he was supposed to stand at all times. Balin’s employer started disciplinary proceedings against him, resulting in his dismissal. Balin raised a claim for direct discrimination on the basis of his race, which was Bangladeshi.

Balin’s complaint focused on 3 actions taken by his employer:

1. the serving of an invalid written warning
2. the failure of his employer to rescind that written warning and
3. his dismissal.

The decision

The Employment Tribunal didn’t agree that acts 1 and 2 were discriminatory. This was, in part, because Balin didn’t provide any evidence that a colleague of a different race had been, or would be, treated more favourably for a similar lapse. In other words, Balin didn’t provide a ‘comparator’.

However, Balin was successful in his third argument - that he was dismissed because of racial discrimination. Balin used Fraser (the supervisor who stepped in to perform door opening duty) as a comparator. Fraser was white. Following the incident:

• Fraser was given the opportunity to explain his version of events. Balin wasn’t.
• Fraser was given the opportunity to provide a written statement. Balin wasn’t.  
• HR advised that if Fraser was partially responsible for completing the door opening protocol, his conduct should be investigated too. That never happened.
  

It wasn’t just the successful use of a comparator that won the argument. Throughout the disciplinary process, the employer made a large number of procedural errors:

• Balin’s repeated requests to see CCTV footage of the incident were denied, even though others had seen this.
• He was kept waiting at a meeting for 2 hours.
• He was given only 2 days' notice of a meeting.
• An investigative report was factually incorrect, stating that doors were left open, rather than being left shut.
• A report said Balin had worked there for 2 years, which he hadn’t.
• Balin was given the wrong address for a meeting.
• A meeting was conducted in a communal room, with other staff (including Fraser) coming in and out.  
  

The Employment Tribunal decided that due to the number and type of procedural errors, discrimination could be inferred. The Tribunal was not satisfied that the employer had done enough to show that they had a good reason for the treatment, which did not relate to race.

What you can learn from this

Identifying an appropriate comparator is a crucial part of demonstrating direct discrimination. When Balin presented an example of a white staff member being treated more favourably than him in a very similar situation, he was able to show that he had suffered racial discrimination at work.  

However, don’t be discouraged if you’re having difficulty finding a comparator. If an actual comparator isn’t available, a Tribunal may be able to construct a hypothetical comparator. This means someone whose circumstances are not exactly the same as yours, but similar enough to show that treatment was because of your protected characteristic. Read more about hypothetical comparators here.

We may not immediately think of procedural irregularities as being obviously discriminatory behaviour, but they were in this case. This highlights the importance of gathering evidence (you can use Valla to do this). Balin’s third argument included details of many actions which, taken alone, may have been forgivable but, taken together, constituted racial discrimination.

Read Balin’s full Employment Tribunal decision

Example 2: a direct race discrimination case involving mistreatment of a Black employee

What happened

Sergeant P was an infantry soldier in the Army. Following a period of long term sickness absence, he was posted to the Training Wing of the Military Correction Training Centre. Sergeant P was subject to an appraisal process known as a Soldiers Joint Appraisal Report (SJAR).

He brought an Employment Tribunal claim against the Ministry of Defence (MoD) for direct discrimination on the basis of his race, which was Black Afro-Caribbean.

The complaint was based on 3 events:

1. Comments in a WhatsApp group chat: Sergeant P read messages which referred to his absence from work: “...he [Sergeant P] gets fecking everywhere… except work”.
2. A critical SJAR: Sergeant P was criticised as “happy to do the minimum expected of him”. At no stage prior had he been informed of any shortcomings in his performance. Sergeant P also relied upon an email which included the phrase “people like him”.
3. The ‘Right Turn’ course: the SJAR claimed that Sergeant P was observed instructing the ‘Right Turn’ course. His performance was rated as poor. However, Sergeant P didn’t actually teach the course. In fact, the course was taught by the only other Black Sergeant at the training wing, Sergeant R.
   

Sergeant P argued that acts 1 and 2 were the result of a stereotypical assumption that Black Afro-Caribbean people are lazy and that act 3 was a result of confusing 2 soldiers just because they were of the same race.

The decision

The Employment Tribunal didn’t agree that the comments on the WhatsApp chat were discriminatory - they were insulting and inappropriate, but not racially motivated. The comments were an expression of frustration that Sergeant P had been absent from work for long periods of time. The Tribunal had no basis to believe that equally inappropriate comments wouldn’t have been made about a white person who was absent from work for long periods of time.  

Sergeant P’s second complaint (the negative SJAR report) was also unsuccessful. The Tribunal acknowledged the sad reality that the stereotype of Afro-Caribbean people as lazy does exist. However, that had no impact on the assessment of the facts of the case. The Tribunal said the evidence demonstrated that the comments in the SJAR were based on actual feedback, not a stereotypical assessment of Sergeant P as an Afro-Caribbean. The Tribunal reviewed Sergeant R’s SJAR. It was substantively different. This indicated that the two Black sergeants were being assessed individually. In the context it was said, the Tribunal found the “people like him” reference to mean poor performing soldiers, not Afro-Caribbean soldiers.  

However, the third argument (the ‘Right Turn’ course) was successful. The Tribunal agreed the mistaken observation and the race of the Sergeant who taught the course was enough to infer that the MoD could have committed unlawful discrimination. It was then for the MoD to demonstrate that race played no part whatsoever in the mistake, which they were unable to do.

What you can learn from this

Bad treatment of an employee who has a protected characteristic isn’t enough to establish a case of direct discrimination. There must be ‘something more’ to link the bad treatment to the protected characteristic. This shows the importance of gathering as much evidence as possible.

Read the full Employment Tribunal decision for Sergeant P

How to progress your race discrimination claim

More and more people are standing up against racism at work. If you think you may have a case for racial discrimination, our platform can help you understand the law, gather your evidence and start a claim in the Employment Tribunal. If you need to consult a lawyer, this could save you a lot of time, and money by having it all in one place. Sign up for your free account.