Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

We’re going to take a look in this post at the recent Employment Appeal Tribunal decision in Royal Bank of Scotland v Morris, a case focussing on what can amount to direct race discrimination and disability discrimination (failure to make reasonable adjustments).

The facts

Mr Morris (“the Claimant”), who is black, had continuous employment as a software engineer by RBS since 1998. In 2007 he submitted a complaint regarding his manager (“M1”) to another manager (“M2”). M2 suggested that the Claimant had submitted that M1’s treatment of the Claimant was racially motivated. The Claimant denied this and was offended – he felt that it was unfair to impute that he was “playing the race card” because of his grievance. In a subsequent grievance the Claimant complained about M1’s initial conduct but also about M2’s statements. Neither grievance was upheld and the Claimant then went on a period of sick leave with stress-related symptoms. During his period of sick leave there was a dispute between the Claimant and RBS regarding entitlement to sick pay and arrangements for his returning to work and the Claimant resigned in 2008.

The Claimant went on, over a period of time, to bring claims for:

  • Direct race discrimination
  • Failure to make reasonable adjustments (regarding his return to work)
  • Constructive dismissal

The Employment Tribunal found in the Claimant’s favour on all 3 heads. The Respondent (RBS) appealed the discrimination claims on the grounds that:

  1. The original comments by M2 were not directly discriminatory
  2. The handling of the grievance process itself and the dismissal itself did not constitute direct race discrimination
  3. The Employment Tribunal could not have come to a conclusion on the evidence available that the Claimant was disabled
  4. The Employment Tribunal misdirected itself on the law relating to a failure to make reasonable adjustments

The law

We’ll take a brief look at the three main elements of the claim, looking at them from the current perspective of the Equality Act 2010 (even though the discrimination claims were advanced under the old legislation: the Race Relations Act 1976 and the Disability Discrimination Act 1995).

Direct race discrimination under the Equality Act 2010

Direct race discrimination is defined as the less favourable treatment of the [Claimant] because of his race (in this case national origin and/or skin colour). The Claimant’s treatment was compared with a hypothetical white employee of RBS.

The comments by M2

The Employment Tribunal found that the Claimant was treated differently in his grievance process because of his skin colour. A white employee in similar circumstances would not have been accused of “playing the race card” and this was a stereotypical assumption relating to black employees.

The handling of the Claimant’s grievance process leading to dismissal

The Employment Tribunal found that the handling of the Claimant’s grievance process leading up to (and causing) his resignation was also directly discriminatory. The Employment Tribunal believed that the hypothetical white employee would also have been treated in a more favourable manner than the Claimant. This was primarily as a result of the incompetence that RBS’s employees displayed in handling the Claimant’s grievance and the “perverse” decisions of those investigating and assessing the Claimant’s case.

Failure to make reasonable adjustments

Employers have a duty to make reasonable adjustments for disabled employees. The crucial issues in any such case are, firstly, whether the worker is disabled and, secondly, whether the employer has failed to make such adjustments as were reasonable to the workplace or the worker’s duties as to breach its duty to the worker.

Although there was no expert evidence before the Employment Tribunal, the Employment Tribunal concluded on the basis of the Claimant’s medical notes that he did in fact have clinical depression, that such clinical depression had a substantial adverse impact on his ability to carry out day-to-day activities, that the effect was long-term, and that he was therefore disabled. The Employment Tribunal further found that the Respondent had failed to make reasonable adjustments by failing to consider moving him to another building and where his new department would be based (although they had considered moving him to another department).

Constructive dismissal

It was found by the Employment Tribunal that the handling of the Claimant’s grievance process (leading to his resignation) was procedurally incompetent and therefore in breach of the implied term of mutual trust and confidence in the Claimant’s contract of employment. The Claimant was therefore unfairly constructively dismissed.

EAT’s thoughts

The EAT upheld the first ‘count’ of race discrimination (M2’s comments regarding “playing the race card”) but dismissed the second ground of direct discrimination (the handling of the grievance process) and the failure to make reasonable adjustments.

The handling of the Claimant’s grievance process leading to dismissal

The Employment Appeal Tribunal found that the Employment Tribunal’s reasoning was flawed. The incompetent handling of a grievance process does not necessarily lead to an inference that the incompetent handling was because of the Claimant’s race – it can and often is because of poor management. The Employment Appeal Tribunal did in find fact that the mishandling of the grievance process did constitute constructive dismissal (although this was not a point appealed by the Respondent) but that the mishandling was not itself because of the Claimant’s race – an important distinction. The finding of direct race discrimination was therefore dismissed.

Failure to make reasonable adjustments

The Employment Appeal Tribunal considered that it was not open for the Employment Tribunal to find that the Claimant was disabled on the basis of the inconclusive evidence available to it. It was not clear whether the Claimant in fact had clinical depression at the time and it was also not clear as to how long that clinical depression (if it existed) would continue for. The medical notes of the doctors that the Claimant visited were inconclusive on both counts and were, in the Employment Appeal Tribunal’s opinion, rather optimistic regarding a recovery. The claim for failure to make reasonable adjustments was therefore dismissed.

Although the Employment Appeal Tribunal did not need to consider whether the Respondent had failed to make sufficient reasonable adjustments (and had therefore failed in its duty to the Claimant), the Employment Appeal Tribunal went on to find that there had in fact been no breach of duty on the Respondent’s behalf. It had seriously considered adjustments to the Claimant’s duties and workplace, primarily by offering him a transfer to another department. Although the Claimant was (justifiably) concerned that he would still be in the same building as the employees he had complained about, this adjustment was reasonable in the circumstances.

Our thoughts

This case is an interesting one and highlights particular points of interest for cases in the future:

  1. Making “stereotyping” comments can be directly discriminatory
  2. If the Claimant is suggested to have a psychological disability and the Respondent is challenging whether they’re disabled, obtain expert evidence on this point. However, expert evidence regarding psychological claims can be extremely costly and may outweigh the compensation claimed in a case
  3. If the Respondent has considered and consulted with the Claimants on adjustments relating to their work because of their disability, they often have a strong defence of a claim for failure to make reasonable adjustments

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *

 

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    292 Reviews

    Anonymous

    Exceeded my expectations. Very professional and proactive. I highly recommend them.

    Posted 1 week ago

    Anonymous

    The service provided to me by Redmans Solicitors was excellent and I would have no hesitation in recommending Chris. While I cannot get into the detail of the matter, it was very emotionally difficult for me and Chris was sensitive throughout and was clear that his motivation was arriving at a solution that helped me while I am unwell - and less about his own fee. His emotional intelligence was coupled with a very sharp and quick understanding of the complex facts of the matter and the legal arguments and he quickly formed a strong case working with me the whole way. Chris was particularly patient with me at what I found a stressful time, and I want to thank him personally for everything he did.

    Posted 1 week ago

    Anonymous

    A lovely, friendly and professional service. They advised me through my employment change. They where very responsive, keeping me updated and explaining everything in layman’s terms. No hidden charges. I would highly recommend them.

    Posted 2 weeks ago

    Philip H

    I was advised well and had a good experience using Redmans Solicitors.

    Posted 2 weeks ago

    Line v

    Good service and very helpful, informative

    Posted 2 weeks ago

    Katarzyna Z

    Very prompt replies, good rates and competent staff.

    Posted 2 weeks ago

    Sudhir S

    Professional in approach and give good advice all the time during my settlement agreement with the Company. Fee wise slightly expensive compare to the initial estimates.

    Posted 2 weeks ago

    Aaron H

    Very grateful to Mel who was brilliant kept me informed and was really helpful when I needed her

    Posted 2 weeks ago

    Alexia P

    The team at Redmans we're always professional and helpful throughout my case. The team were open to listening to me, understanding my situation and being clear about what they can support with.

    Posted 2 weeks ago

    Emma L

    So glad I chose Redmans to assist with my emplyment issue. From start to finish I received excellent service. Mel Chin had calm, methodical approach and she got me a far better result than I could have done on my own. Would not hesitate recommend far and wide.

    Posted 3 weeks ago

    Sam T

    I was extremely impressed with the support and advice that I received. The solicitors I worked with acted very quickly and were clear in their communications at every stage.

    Posted 3 weeks ago

    Anonymous

    I cannot thank Caroline enough for her empathetic help, advice and guidance in what was at times a very stressful situation. Always professional and available to answer any queries I had, I highly recommend Caroline and all the team at Redmans.

    Posted 3 weeks ago

    Robert M

    Chris Hadrill provided me with very efficient turn around of an employment offer from a US-based company. Chris reviewed the contract, identified key issues and offered sound/pragmatic advice and suggestions for improvement which I could then bring in non-legalese to my prospective employer. Employer accepted all the important changes Chris suggested and I accepted the job!! Very satisfied with the service.

    Posted 3 weeks ago

    Karen R

    Prompt, helpful and excellent service. Very professional and super quick. Very reasonable price for London. Definitely recommend and would use again.

    Posted 3 weeks ago

    Anonymous

    Excellent service from Redmans, I would not hesitate to recommend this firm of solicitors. Thank you very much to the team, and especially Chris and Mel!

    Posted 1 month ago

    Siriana B

    Thorough, efficient, and always available to answer my queries. It was a pleasure to deal with.Thanks

    Posted 1 month ago

    Anonymous

    Excellent speedy service

    Posted 1 month ago

    Robert

    Excellent service, very professional. would definitely use again.

    Posted 1 month ago

    Mary B

    I was very happy with the work Chris did for me. I believe with his help I secured a more favourable outcome both financially and in terms of clauses contained in the legal agreement I ultimately signed. I had utmost trust and confidence in the advice Chris provided throughout. Chris kept me informed at every stage and I found him very efficient at bringing matters to a conclusion without unnecessary delay.

    Posted 1 month ago

    Mark M

    I found Redmans very easy to work with. Mel was very responsive, her advice led to an improved settlement. . Recommended.!

    Posted 1 month ago

    Anonymous

    Fantastic service. I would recommend Redmans to anyone who needed a Solicitor. The communication was second to none and consistent clear guidance was given.

    Posted 1 month ago