Case ref: 9.4/ October 2005
Summary of Case
A PCS member wasoverlooked for temporary promotion following a restructuring exercise. In addition her appraisal was not completed satisfactorily. She raised a formal complaint on these issues.
She then applied to the ET on all of the above points. She cited victimisation as a result of making a complaint through the employer's internal procedures.
Thompsons were asked to advise on the likelihood of success at an ET, in particular addressing the following issues:
- temporary promotion
- appraisal not completed satisfactorily
- potential victimisation as a result of issuing a complaint.
Key advice provided by Thompsons
The solicitor was hampered in her ability to provide advice on the issues of temporary promotion and victimisation. However, general advice was given in the approach taken by ETs to race discrimination and provided some comment on the difficulties with this particular claim. The key extract from the solicitor's letter is as follows:
"In order to prove race discrimination Ms H has to show that she has been treated less favourably on racial grounds than a person of another race has or would be treated. There is no need for her to prove that the treatment complained of was an intention or desire to discriminate. Motive is not relevant. However, it should be borne in mind that mere different treatment is not enough.
"Direct evidence of race discrimination is rarely available and it is up to the complainant to invite the Tribunal to infer discrimination from the facts of the case. Usually the sort of background evidence from which a Tribunal may infer discrimination may be, for example, racist stereotyping, stereotypical vocabulary, or even showing that staff from one ethnic group were more often than white staff treated in a certain way.
"Ms H considers that in her appraisal she was marked down on seven areas common in stereotyping for women and ethnic minority staff. However, she was also marked down on almost twenty other areas, which it would appear are not common for ethnic minority staff.
"On 30 July 2004, Ms H met with Human Resources after a period of sickness absence. The HR Manager terminated the meeting and wrote to Ms H to explain that she found her behaviour aggressive. The HR Manager quoted that Ms H had stated that she did not consider herself to be aggressive as she "had not thrown anything at [me] and were sitting too far away to be physically threatening". However, the manager had found Ms H's tone and body language inappropriate.
"Ms H raised her concerns over the Appraisal in a series of e-mails with management. On 27 August 2004, she raised a formal complaint of bullying by an Ms Y and other senior managers. However, within her formal complaint she states that "Ms Y has exhibited these behaviours towards other employees who have suffered similar impairment to their ability to fulfil their contractual duties and similarly causing them to suffer prolonged negative stress". This somewhat undermines Ms H's complaint that she has been singled out due to her race.
"Where the Claimant proves a prima facie case of direct discrimination, the burden shifts to the Respondent to prove that it was not racially discriminatory.
"This means that where the Claimant proves from the facts from which the Tribunal could conclude in the absence of an adequate explanation that the Respondent has committed an act of discrimination, the Tribunal shall uphold the complaint unless the Respondent proves he did not commit the act. Unreasonable behaviour is not enough to show that the acts are acts of discrimination. In the recent case of Bah and the Law Society  RILE 899 the Court of Appeal found that unreasonable treatment cannot of itself lead to an inference of discrimination.
"Only a small percentage of claims for race discrimination are successful in the Tribunal. On the basis of the information provided to me I am sorry to say that I think it would be extremely difficult to demonstrate that Ms H has been discriminated against on the grounds of her race. She may have been mistreated by managers and the treatment may amount to bullying but there is no legal protection against bullying unless it is linked to discrimination, which appears not to be the case.
"It would appear that Ms H did not raise complaints of race discrimination until she received an unfavourable Appraisal. Furthermore, from the papers provided it would appear that Ms H has not formally appealed her Appraisal, which is her contractual right. A Tribunal would expect Ms H to exhaust internal procedures."
Legal department comment
The advice provided above builds on the guidance given in case 5 in dissemination bulletin number 8. Bargaining Units must come to a view about whether or not cases are referred to Thompsons for advice.
However, it is likely that legal opinion will be sought in those cases concerned with complaints of race discrimination. In order that good quality advice can be provided it is essential that the solicitor is provided with all of the evidence including relevant documents, relating to the case.