In this article, Employment Solicitor Chris Dobbs looks at a recent case where an employee claimed unfair dismissal on discriminatory grounds.
Chris provides advice for employers on how to avoid and mitigate claims arising from complaints, investigations and disciplinary processes.
What is the definition of ‘race’ under the Equality Act?
The Equality Act’s definition of race is comprehensive. The definition includes colour, nationality, and ethnic or national origins.
This broader definition is what allows for claims to be based on more than simply skin colour and case law tells us that claims can be brought where the difference is in national as much as ethnic origins.
It is also clear from case law that assigning stereotypes associated with a particular protected characteristic can amount to unlawful conduct.
Is racial stereotyping considered discriminatory in the workplace?
Therefore it follows, and is the case, that racial stereotyping could amount to discriminatory behaviour.
This makes sense as most discrimination is born from stereotyping or prejudice in the first place.
But what happens when a stereotypical trait is true of an individual and it is that trait which causes workplace problems?
Dr A Plaut v Exeter University
This was precisely the question asked of the Exeter Tribunal in the recent case of Dr A Plaut v Exeter University.
Dr Plaut was employed by the University and dismissed due to the way in which she interacted with two doctoral students.
She brought claims for unfair dismissal, direct race discrimination, direct sex discrimination, harassment and victimisation.
What did the tribunal find?
The Tribunal found the dismissal to be unfair. The University had failed to properly investigate the allegation, they had followed neither their own procedures not the minimum standards expected under the ACAS Code of Practice.
There were significant issues with the investigation including, the Tribunal found, at least one “attempt to get someone to complain about” Dr Plaut and a “total focus on negativity”. Indeed, the Tribunal stated that “this dismissal was 100% unfair”.
What was the claim?
Dr Plaut’s case in respect of race discrimination was that she was of eastern European Jewish heritage.
This, she claimed, meant that she had inherent characteristics related to how she interacted with others including an ‘argumentative style of discussion involving interruption’.
She argued that it was a trait shared with some from the Middle East or Mediterranean.
Is discipline against an action racist if the action is considered ‘inherent’?
The Tribunal rejected this argument. It said that the primary issues were that Dr Plaut’s interaction with others was perceived by them as shouting and that, if this is the case, the reality for the individual is that they are being shouted at.
In this, the Tribunal took the view that the other person in a conversation should not be expected to accept this manner of interaction no matter how inherent it may be to a Claimant.
In any case, the fact that someone perceives communication as shouting is not made racist simply because the trait may be inherent; the objection is to anyone shouting at them.
Further tribunal findings
The Tribunal also heard evidence about other colleagues in the department who were of one of the ethnic backgrounds she described.
None of them had experienced the same issues or had complaints made about their style of communication in this way and so this did not assist Dr Plaut in her claim.
Separately, the Tribunal found that Dr Plaut was harassed and victimised in respect of her suspension as this arose in consequence of her protected act during a meeting that day.
Employers: How to avoid issues within the disciplinary process
Employment Solicitor Chris Dobbs said: “What this case goes to show more than anything else is just how easily a complaint, investigation and disciplinary process can go wrong for an employer.
It is clear from reading the case that there were far too many individuals involved in the process and that some of them had motivations for wanting Dr Plaut dismissed.”
A specialist Employment solicitor’s view
Chris continued: “The Tribunal’s conclusion on the direct race claim makes sense. It would be hard to show that the motivation behind complaints against Dr Plaut for her manner of communication were based on race.
It is right that an individual who objects to what they perceive as being shouted at should not be deemed racist automatically.
However, this judgment only relates to this one specific alleged inherent trait and in its particular context.
Cases have been and will continue to be successful for discrimination based on ethnic, cultural or racial traits whether these are assumed stereotypes or real characteristics.”
Employment law advice and guidance: Stay up to date
Throughout the pandemic, our team of bright lawyers have been publishing guidance on the ever-changing regulations. The timely updates are published on our website in plain English and shared on our social media channels.
To be the first to hear about any updates, you can register for our free newsletter (and choose the topics you want to hear about) here.
Employment solicitors in Bournemouth, Christchurch and Ringwood
At Frettens, we offer a free initial appointment for all new clients. This usually takes place over a coffee with one of our bright lawyers at our modern, conveniently located offices, but can also be over the phone or video call.
Comments