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Race discrimination remains very hard to prove but these two cases suggest some courts are waking up.

Race discrimination remains very hard to prove but these two cases suggest some courts are waking up.


Proving race discrimination has taken place is very difficult as Joy Warmington and I showed in Too Hot to Handle. We showed:

  • Race discrimination is rarely admitted. Employers frequently respond to allegations of racism with avoidance and denial

  • Very little discrimination is overt. In the absence of evidence of openly racist abuse and discrimination, proving race discrimination may have to be demonstrated by surrounding circumstances, data patterns and the previous history.

  • Employers generally look at events individually (where proving racism may be very difficult) when they should really consider the impact of cumulative patterns of behaviour.

  • Employers often set a high bar – claiming the need to see evidence of ‘deliberate’ discrimination and bias” thus failing to recognise most discrimination is subtle and covert.

  • Courts regularly find HR staff may fall short of the expected standard in race discrimination cases

  • Investigations where race may be a factor are notoriously poor in quality and prone to bias

  • Employers repeatedly misunderstand the legal framework of burden of proof in discrimination cases


Only a tiny proportion of race discrimination cases that are lodged succeed in winning at a hearing. Nevertheless, there are signs in recent cases that some Employment Tribunals are seeking to address these obstacles, as we discussed in Too Hot to Handle.


The recent case of Bindu Parmar a senior social work manager, who in the teeth of resistance from Leicester City Council showed that her treatment was discriminatory – a finding upheld even when Leicester City Council foolishly spent more taxpayers’ money appealing the case – and losing. https://tinyurl.com/3mzxfpzx


Two following two recent cases are worthy of note - both by those experiencing race discrimination and by HR teams. The underlying issues may be strikingly familiar.

 

Case 1. “Playing the race card”

In April 2024 an Employment Tribunal found that a Rastafarian soldier, Dwight Pile-Grey, had been unfairly dismissed and was subjected to direct race discrimination, racial harassment and victimisation, when he was told he was ‘playing the race card’ during an argument. https://tinyurl.com/2frkrsf8


The Tribunal found senior Army personnel were ‘less concerned with tackling racism and more concerned with upholding conduct standards’.


Dwight Pile-Grey joined the British Army in 2005 aged 37 as a musician with the Royal Corps of Army Music, and then with the Band of the Grenadier Guards becoming a lance sergeant. He was the first Rastafarian soldier allowed to wear his hair in locks.


In July 2021, he entered the barracks wearing civilian clothes for a medical appointment as he was not on duty that day. Afterwards, he left the barracks to make a phone call but, when he tried to return, he was stopped by Lance Corporal Stott, the guard on duty, and asked to show his ID card, which he did not have on him.


Pile-Grey eventually entered the barracks, but not before he said he was subjected to racist comments by the guard during this interaction. After changing into his uniform, he returned to speak to the guard to challenge his behaviour, during which interaction Pile-Grey alleged that Stott accused him of “playing the race card”,


When he then sought to speak to Stott’s superior officer, Staff Sergeant Flowers, the latter “made comments to indicate that he was not interested in listening to him, also accused [Pile-Grey] of ‘playing the race card’, walked away and then encouraged or permitted [Pile-Grey] to be forcibly ejected from the guardroom, according to Dwight Pile-Grey.


After this argument, caught on CCTV, he went to see Lieutenant Colonel Hunter, the garrison commander. He was offered a disciplinary investigation into the actions of Flowers and Stott, but instead requested an informal mediation meeting. At the appointed time he turned up but neither Scott not Flowers did.


Pile-Grey was on leave and on his return was told he was now being formally charged with disciplinary action and had to attend a summary hearing. He pleaded guilty to the charge of insubordination, in relation to his conduct outside the guardroom. He was fined one day’s pay and a disciplinary entry was made on his service record.


He submitted a service complaint about how his complaints and the complaints against him had been dealt with but this was rejected.


The Tribunal found: “It was clear from the wording used, ‘going to turn this into a racial thing’ and ‘playing the race card’, that the claimant being Black was at the forefront of Mr Flowers’ mind, and it seems inconceivable that he would have used such words to a white person, and it therefore seemed likely that his entire approach to the interactions with the claimant were influenced by race.”


The Tribunal also found that “it was clear that the senior personnel were less concerned with tackling racism and more concerned with upholding conduct standards”, and “wilfully ignored” the fact that any sort of discrimination was against the Army’s code of conduct and noted that:


“There is an unfortunate trope of Black men and women being accused of being aggressive in situations or circumstances when other races would not,” and that this stereotype was being applied to Pile-Grey.


Case 2. Senior management team collude to exclude black teacher

In May 2024, Anrea Mairs, a Manchester teacher, won her case that she was racially discriminated against and unfairly dismissed after the school leadership team threatened to go on strike or leave if she returned to work, an employment tribunal has ruled. 


A Liverpool Employment Tribunal rejected the school’s defence that Andrea Mairs was dismissed because of an “irretrievable breakdown of the relationship between [her and] the six members of the senior leadership team (SLT)”, and upheld Mairs’ claims of unfair dismissal, race discrimination by victimisation, unauthorised deduction from wages and breach of contract. https://tinyurl.com/3h359mw8


The case followed a series of complaints from Andrea Mairs to the school’s senior leadership, about microaggressions and racism related to the use of language and behaviour, in response to which the SLT members collectively lodged a complaint against her, describing her complaints as “alarmingly frequent”. 


On 1 July 2019, the six members of the senior leadership team came together to lodge a grievance against Mairs on the grounds that she “regularly threatens staff with formal action”, which “caused anxiety and distress”.


In September 2020, when she had been off sick for almost a year, Mairs was ready to return to the school, backed by occupational health. All members of the SLT replied to this news in “highly emotive” language, the tribunal found, each refusing to work with her and/or threatening to leave in a series of “excessive” letters.


Andrea Mairs eventually lodged a grievance which Mr Hanif, the investigating officer, concluded was “a malicious grievance aimed at deflecting and steering away issues raised by the SLT” and said the relationship between her and the SLT had broken down. Mairs appealed the finding, but it was upheld. 


The tribunal found that whilst Andrea Mairs’ complaints were at times “harsh and inappropriate” in tone, the letters from the SLT members used “highly emotive language”, and were “excessive” and “overclaiming in impact”.


The similarity and timing of the SLT members’ letters showed the teachers had “colluded to put their letters together”, the judge said, and that the witnesses who denied that were “not credible”.


On 13 November, Mairs was suspended from her role and told that suspension did not constitute disciplinary action and that an investigation into the “irretrievable relationship breakdown” would take place. Over the next year during the investigation, conducted by external HR consultant Ms Long, Mairs remained suspended. After an interview with Mairs as part of the investigation, Long recommended a dismissal meeting.


The tribunal held: “The claimant honestly believed that SLT’s motivation was because they were afraid that if they raised a concern with her, she would accuse them of racism. This is what she meant by use of the term ‘Blackophobic’.


“She honestly believed that SLT would not have lodged a collective grievance about matters in their grievance without having previously raised them with the individual teacher on a one-to-one basis, if that teacher had not been Black.”


It reached a unanimous decision of unfair dismissal, agreeing that the decision “fell outside the range of responses of a reasonable employer”. It said that the dismissal hearing “appeared to have predetermined” that Mairs should be dismissed because of the relationship between her and the SLT having broken down.


The court also ruled that the decision to instigate an investigation conducted by an external HR professional itself amounted to a detriment against Mairs, as “it put in place the process that would prevent the return to work that had been indicated and lead to termination of employment”.


The court upheld all of Mairs’ claims and also criticised the school’s failure to consider any alternative to dismissal, noting:


“The claimant was a teacher of more than 19 years’ service, with an unblemished performance record. No one had taken any steps to address any conduct or performance issues and she was doted on by the children and their parents”.


Comment.

The findings in these two cases are no compensation for the stress, ill health, and damage to career these cases will have caused whilst the taxpayer foots the bill for fancy lawyers. But they do suggest that, especially in respect of an understanding of the nature and impact of racism that some Courts showing a greater understanding of race discrimination at work, not least when it comes to the burden of proof.

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