The Facts

Following a number of incidents, tensions developed between Morris, who is black, and his manager, Tigue. As a result Morris met with Tigue’s manager, Arnett. Arnett said something to the effect that Morris was alleging that Tigue’s conduct was connected with race. Morris denied this, resenting the suggestion that he was “playing the race card”. Morris subsequently raised a grievance about Tigue and alluded to Arnett’s “racial observations” and that Arnett had “tried to play the race card in relation to my thinking”. The investigating manager told Morris that if he wished to complain about individuals other than Tigue, he would have to do so separately.

The ET

A tribunal found that Arnett’s comments amounted to direct race discrimination, as Morris had said nothing to indicate that he was raising race as an issue and Arnett would not have made the same suggestion if a white employee was complaining about a black manager. In addition, RBS’s investigation of the grievance was inadequate and also amounted to direct race discrimination, as RBS had failed to explain why it had not addressed the “Arnett episode”.

The EAT

The EAT upheld the tribunal’s decision that Arnett had directly discriminated against Morris. Arnett’s comment was demeaning and based on a stereotype: he would not have treated a white employee complaining about a black colleague in the same way. However, the EAT overturned the tribunal’s decision that the employer’s incompetent investigation into the employee’s subsequent grievance was also an act of direct race discrimination. ‘Incompetency’ was irrelevant to whether the investigation was discriminatory. The key question was whether the investigating manger was influenced by the fact that Morris is black. The tribunal was shown no evidence that the investigating manager would have been more competent in investigating a complaint made by a white employee.

The Implications

While the EAT thought that Arnett’s comment was, “as acts of discrimination go, by no means grave”, it was nevertheless “a single tactless remark, betraying an almost certainly unconscious racial stereotype of a rather subtle kind”, made even worse by the fact that Morris had never made any allegation that his treatment had been racially motivated. Also, as the EAT highlighted, an immediate apology might have helped, but in reality this type of stereotypical thinking has no place in the working environment and during awareness training employees should be told to ‘leave any such baggage they have at the front door’. The other learning point is that if an allegation of potential discrimination is made, then investigate it and don’t try and park it elsewhere. As a point of law RBS succeeded in this case, but good employment relations requires every complaint to be treated seriously and investigated properly.

Royal Bank of Scotland plc v Morris IDS Brief 955