Direct race discrimination occurs where there is less favourable treatment of an individual because of their race. ‘Race’ is defined as including colour, nationality or ethnic or national origins. Employers can be held to be vicariously liable for acts of race discrimination committed by staff in the course of their employment. An employer has a defence if it can prove it took all ‘reasonable steps’ to prevent discrimination. This will usually include having robust equality policies and ensuring staff receive training on equality and diversity issues. Some larger employers also appoint diversity champions/advocates to promote equality at work. However, it is important to handle equality issues sensitively, as demonstrated by a recent case in which an inclusion advocate subjected her colleague to race discrimination when she made a stereotypical assumption that her colleague must have suffered from ‘oppression’ due to her skin colour. 

B worked as an installation engineer for Sky. Although B was adopted, and therefore unsure of her parents’ ethnicity, she identifies as Latino, and her skin colour is consistent with someone of Latino ethnic origin. B was one of a number of ‘inclusion advocates’ appointed by Sky to promote diversity and inclusion on the basis of all protected characteristics. 

In June 2020, B received a call from another inclusion advocate, C. They had a lengthy discussion about some slides for a presentation that C was preparing on inclusion and diversity issues. The presentation was not specifically about race discrimination, but the backdrop was the recent murder of George Floyd and the emergence of the Black Lives Matter movement. C explained the additions she had made to the slides, which included slides designed to promote discussion of systemic racism. As part of the discussion, C made a comment to B to the effect that B would have suffered oppression because of her race, and the colour of her skin. B forcefully expressed her views to the contrary.

B later had discussions with three managers about the comments made by C. She explained that she was concerned that she was being or would be treated differently because of the colour of her skin and that C’s comments had made her feel self-conscious about the colour of her skin. B later sent an email raising a grievance about C’s comments saying, ‘regarding the colour of my skin. …I was told that I should understand this as I had suffered oppression. I have never felt oppressed in my life and I think it is wrong for this person to assume because of the colour of my skin I have without even knowing anything of my background ethnicity or upbringing.’ B was then absent from work for about a week and was ‘stood down’ as an inclusion advocate.

A few days after returning to work, B withdrew her grievance before it had been determined. Her email said, ‘I no longer want to proceed with this as a grievance as I feel there was no intent behind the comments made. However, I do feel it would be beneficial for an off the record chat with [C] as to how she made me feel to ensure no one else is made to feel uncomfortable in the workplace’. No such chat was ever arranged by the managers involved in dealing with B’s grievance.

In mid-September 2020, B took part in an absence review meeting with her line manager. The events leading to B’s absence in June 2020 were discussed and B explained that she had not been in a fit state mentally to be speaking to her colleagues following C’s remarks to her. B expressed the view that she wished that she had gone ahead with the grievance. Later that day, B’s line manager confirmed that no formal sanction would be issued regarding her attendance, but no steps were taken to re-open B’s grievance.

On 30 October 2020, B was dismissed for gross misconduct for unrelated reasons arising from her failure to self-isolate following travel to a country which required 14-days post-travel self-isolation. B’s internal appeal raised a victimisation complaint alleging discrimination on grounds of race and sex; this was treated as a grievance and investigated separately. After both her appeal and grievance were dismissed, B brought unfair dismissal and race discrimination claims.

The employment tribunal upheld part of B’s race discrimination complaint. The tribunal held that, although C had not deliberately used language offensive or harmful to B, the ‘blunt’ remark made by C amounted to less favourable treatment related to B’s race and the lack of ‘motive’ was not relevant. C’s comment concerned, and was made because of, the colour of B’s skin. The tribunal noted that C ‘appears to have assumed that as the [B’s] skin colour is not white that she must have suffered oppression, which is a form of stereotyping’ and that ‘the remark equated the colour of [B’s] skin with her having been oppressed and that [B] would have felt that oppression, which had not been [B’s] view or experience. 

The tribunal went on to hold that the manner in which the employer had handled B’s complaint about C’s comment also amounted to direct discrimination. In particular, the tribunal was concerned that B’s line manager had not arranged the requested off-the-record chat between B and C, that B had been stood down as an inclusion advocate after raising her grievance, and that ‘inappropriate’ comments had been made in the September 2020 absence review meeting when C’s comments and the impact these had had on B were discussed. The tribunal held that this was, ‘a form of dereliction of duty by the manager. A person in receipt of such language should not be expected to handle the issue herself, with the inference that that [she] should [do this] without having time off work given the context of an absence review meeting.’ The remainder of B’s claims were dismissed. The tribunal awarded B £12,000 injury to feelings compensation, plus interest.

Bradbury -v- Sky In-Home Service Ltd [2022] ET/4108097/2021

Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being deal with in the ET.