Veitch Penny LLP - Exeter | Crediton, Devon

Case

Thomas (& another) v Robinson - Employment Appeal Tribunal (January 2003)

Issues

(1) Race relations
(2) Discrimination
(3) Tribunal procedure

Facts

This case centred around two Comsoft Ltd employees: Miss Robinson and Miss Thomas. Miss Robinson was born in England of black Afro-Caribbean origin. Miss Thomas had made a number of racist remarks to Miss Robinson, who informed her employers of the incidents. The remarks were discussed in a meeting with Comsoft at the same time as an incident involving Miss Robinson at a residential training course. The outcome of the meeting was that Miss Robinson was dismissed and Miss Thomas received an oral warning.

Miss Robinson's complaint to the Employment Tribunal was based upon race discrimination on the part of Miss Thomas and the company (on the basis that the remark was made during the course of Miss Thomas' employment). The Tribunal hearing the case heard Miss Robinson's evidence regarding the remarks and their effect upon her. Miss Robinson gave evidence that she had been shocked by the outburst and was deeply offended. At this point, the Chairman prevented further cross-examination on the point. The Chairman stated that all racial abuse was detrimental treatment and therefore no further evidence had to be heard. Whilst it found that Miss Robinson had not been unfairly dismissed, the Tribunal held that one instance of abuse by Miss Thomas constituted racial abuse; as the others had not been addressed to her on grounds of her race, and because Miss Thomas would have used those terms to anyone, regardless of race. Compensation for injury to feelings was awarded against Miss Thomas and the company in the sum of £500 and £2,000 respectively. No award was made for aggravated damages.

The decision was then appealed on the basis that (1) the appellants' solicitor had not had the opportunity to cross-examine Miss Robinson, and that (2) the Tribunal had failed to consider whether any detriment had been suffered by Miss Robinson.

Decision

The Employment Appeal Tribunal agreed that the previous Tribunal had erred by concluding that the single remark constituted racial discrimination without considering whether detriment has been suffered and without allowing cross-examination to take place that may show the absence of detriment. When the treatment is race specific, there is no need for the applicant to show that a person of a different race was treated differently. Whilst the act of abusing someone racially is less favourable treatment, the employee must then go on to show that the employer has subjected him to detriment. If both elements are established then the employee has been racially harassed. The Tribunal cannot assume the second element purely upon the existence of the first, and therefore cross-examination is vital.

The decision of the Tribunal was set aside on the basis of an error of law. The matter remitted to a differently constituted tribunal to reconsider the case.

Comments

This judgement is in line with the draft Race Relations Act (Amendment) Regulations, which also adopts a similar two-step approach. However, it could be argued that the judgement becomes more questionable. The decision states that in some cases a racist remark could not be regarded as a detriment because there are some work environments in which (undesirable a it may be) racial abuse is "given and taken in good part". In reality, it is more likely that the abuse may appear to be taken in that way, when offence really has been caused.