Royal Bank of Scotland plc v Morris

Direct discrimination requires attention to the relevant decision-maker’s mental processes. An unexplained stereotypical assumption that a black employee complaining about a white colleague must be alleging racial discrimination is treatment on racial grounds.

By contrast, an inadequate, unreasonable or incompetent investigation of a discrimination grievance does not itself establish direct discrimination. There must be evidence capable of showing that the decision-maker’s conduct was materially influenced by race. The reverse burden of proof remains a fact-finding exercise and does not permit reliance on matters irrelevant to that person’s reasons for acting.

Under the Disability Discrimination Act 1995, a claimant alleging depression must prove each element of disability. Where duration, treatment effects or recurrence cannot safely be determined from the contemporaneous material, expert evidence may be needed.

The claimant, an Afro-Caribbean software engineer, complained about his manager’s conduct. At a meeting, another manager suggested that the claimant was alleging a racial element although the claimant had said nothing to that effect. The claimant later pursued a Dignity at Work grievance. Its investigation, outcome and internal appeals did not address that incident satisfactorily.

The Employment Tribunal upheld claims for constructive unfair dismissal, direct race discrimination and disability discrimination. The employer appealed only against the discrimination findings. It challenged the finding that the handling of the grievance was racially discriminatory, and the findings that the claimant’s depression was a disability and that a return-to-work transfer policy required reasonable adjustment.

The central issues were whether the original comment and subsequent grievance decisions were taken on racial grounds, and whether the evidence established disability and a breach of the reasonable-adjustment duty.

1. Appeal allowed in part. The finding that the manager’s original comment constituted direct race discrimination was upheld, but on different reasoning. The remaining race-discrimination claims and the disability-discrimination claim were dismissed.

2. The Employment Tribunal’s route to its conclusion on the original comment was flawed. The matters used to shift the burden under section 54A concerned later conduct by other people and could not establish that manager’s reason for speaking. Nevertheless, the unchallenged findings showed that the claimant had said nothing suggesting a racial complaint. The only available inference was that the manager acted on a racial stereotype: a black employee complaining of a white colleague might be alleging racial discrimination. That was treatment on racial grounds within section 1(1)(a) of the Race Relations Act 1976.

3. The grievance findings could not stand. Direct discrimination depends on the mental processes of each relevant decision-maker. Poor investigation, formalism, irrational conclusions and failure to investigate an allegation of discrimination do not, without evidence of racial motivation, establish direct discrimination. The Tribunal had itself found no evidence that a white comparator would have received better treatment, and its findings instead pointed to non-racial explanations, including incompetence and knowledge of separate misconduct allegations.

4. The claimant had not proved a disability under section 1(1) of the Disability Discrimination Act 1995. The medical evidence showed a serious depressive episode in October 2006, but did not safely establish the duration of a substantial adverse effect, a treatment-based effect, or a likely recurrence. In depression cases, such questions will often require expert assistance. The claimant had deliberately chosen not to obtain it.

5. The Tribunal’s reasonable-adjustment reasoning was also unsustainable. It had not clearly identified a step directed to removing the disadvantage caused by the requirement to return to work before transfer. Its findings also suggested that the claimant had been told he would enter a redeployment pool rather than return to his former department. This was an alternative basis for allowing the disability appeal.

6. The original direct-discrimination finding was remitted to the Employment Tribunal for remedy. The finding that the constructive dismissal was itself racially discriminatory necessarily failed.

• Employment Appeal Tribunal: Allowed the employer’s appeal except for the finding concerning the manager’s original comment. Remedy for that surviving finding was remitted.
• Employment Tribunal: Upheld the claimant’s claims for constructive unfair dismissal, direct race discrimination and disability discrimination. Its decision was not separately cited in the judgment.