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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

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